Removal  of  causes  from 
state  courts  to  federal 
courts 


1877 


:•  ^::i?-:i'i'^rsiii&ii%h: 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LffiRARY 


REMOVAL  OF  CAUSES 


FROM 


STATE  COURTS  TO  FEDERAL  COURTS, 


With  Forms  Adapted  to  the  Several  Acts  of 
Congress  on  the  Subject. 


SECOND     AND     REVISED     EDITION. 


BY  JOHN  F.  DILLON, 

Circuit  Judge  of  the  Eighth  Judicial  Circuit,  Author  of  a  Treatise 
ON  "  MuNicii'AL  Corporations,"  etc. 


ST.  LOUIS: 
THE  CENTRAL  LAW  JOURNAL. 

ISTT. 


COPYRIGHT. 

1877. 
JOHN  F.  DILLON. 


MAYNARD  &  THOMPSON,  LAW  PRINTERS, 
ST.   LOUIS. 


PUBLISHERS  PREFATORY  NOTE. 


The  editor  of  the  Southern  Law  Review  requested  the 
author  to  prepare,  for  that  magazine,  a  practical  paper  on 
the  Removal  of  Causes  from  State  Courts  to  Federal 
Courts,  under  the  principal  statutes  of  Congress  on  that 
subject.  The  article  was  accordingly  written,  and  ap- 
peared in  the  Southern  Law  Review  for  July,  1876. 
An  extra  edition  of  several  hundred  copies  was  sep- 
arately struck  off,  and  was  speedily  exhausted.  At  the 
request  of  the  present  publisher,  the  author  of  the  Tract 
has  revised  and  enlarged  it,  bringing  into  view  more  fully 
the  State  Court  decisions,  adding  the  decisions  of  the 
Federal  Courts  down  to  date,  a  Table  of  Cases  and  of 
Contents,  an  Index  and  an  Appendix  of  Forms.  This 
will  make  it  more  convenient  and  useful  to  the  profes- 
sion, for  Avhose  benefit  it  was  originally  written,  and  i& 
now  republished. 


670Rni 


OOI^TIBISrTS. 


JSkctiox  1.  The  Federal  Jiulicial  System — Its  Growth  and  Importance. 

Skc.  2.  Pnuoipal  Statutes  on  the  subject— Acts  of  1789.  186G.  1867.  1875; 
Rev.  Stats..  See.  639. 

Sec.  3.  Constitutional  validity  of  Removal  Acts — Right  Protected  from 
Invasion  by  the  States. 

Sec.  4.  Essential  Elements  of  the  Statutoiy  Right  of  Removal. 

Sec.  5.  Judiciary  Act.  Sec.  12  (Rev.  Stats.,  639.  sub-division  1) — 
Conditions  of  Right  of  Removal  thereunder. 

Sec.  6.  Act  of  July  27.1866  (Rev.  Stats..  Sec.  639,  sub-division  2). 
Xature  of  Right  thereby  conferred. 

;Sec.  7.  Act  of  March  2.  1867  (Rev.  Stats.,  Sec.  639.  sub-division  3)— Na- 
ture of  Right  tliereby  conferred. 

Sec.  S.  Act  of  March  3. 1875 — Nature  and  Extent  of  Right  thereby  given. 

Sec.  9.  Nature  of  Suits  that  may  be  removed  under  above  Acts — Prac- 
tice— Repleader. 

Sec.  10.  From  what  Court  removed; — Removal,  how  enforced — Certio- 
rari. 

Sec.  11.  Value  or  Amount  in  dispute,  as  a  condition  of  Removability. 

Sec.  12.  Party  entitled  to  Removal — Corporations — Aliens. 

Sec.  13.  Time  Avhen  Application  must  be  made. 

Sec.  14.  Mode  of  applying — Bond.  etc. — Affidavit  of  Local  Intiuence. 
under  Act  of  1867. — Petition. 

Sec.  15.  Eftect  of  Petition  for  Removal  on  Jurisdiction  of  State  Court. 

Sec.  16.  Same  on  Federal  Court. 

Sec.  17.  Remanding  Causes  to  State  Court. 


TABLE  OF  CASES  CITED. 


Ablenian  v.  Booth,  32. 
Abranches  v.  Scliell,  6,  44.  0:5. 
Adains,  Kariahoo  v..  19. 
Adams  Express  Co.  v.  Trego.  54. 
vEtna  InsuraiK-e  Co..  Herryford  v., 

67,  OS. 
Akerly  v.  Vilas,  41,  43,  4.5.  53.  54, 

.55,  as  (n.  107  and  108).  71,  79. 
Alexandria     etc.     Railroad     Co., 

Washington    etc.   Railroad    Co. 

v.,,25. 
Allen  V.  Ryerson,  20,  21. 
Allin  V.  Robinson.  37. 
Amazon  Insurance  Co.,  -Jones  v.. 

69., 
American  Express   Co.,  Maltz  v.. 

50. 
Ames  V.   Colorado   Central  Rail- 
road Co.,  32.  57.  59,  GO.  61. 
Amory  v.  Amoiy,  48,  63,  68. 
Andes    Insurance    Co..  Michigan 

Central  Railroad  Co.  v.,  .58. 
Andes   Insurance   Co.,  Young  v.. 

58,  60. 
Andrews.  Exr..  v.  Garrett,  61. 
Andrews.  Jones  v.,  31. 
Andrews  &  Mott.  Ex  parte,  40. 
Anonymous  (1  Dillon  C.  C.  298. 

note).  61,  62. 
Anthon  v.  Morton,  7. 
Arredondo,  VV^ard  v..  16  (n.  21  and 

22),  17,  18.  .52,  .53. 
Artman,  Commonwealth  v..  5.  7. 
Atlas  Insurance  Co.  v.  Byrus.  77, 

79. 
Aurora.  West  v.,  36  (n.  46  and  47). 

37.  40.  52.  67. 
Austin.  Heath  v..  75.  lit. 


Baack.    Manufacturers'    Bank   v.. 

49.  51 . 
Baird  v.  Byrne.  19. 
Baltimore  City.  Barnes  v..  31. 
Baltimore  &  Ohio  Railroad  Co.  v. 

Gallahue's  Adnn-..  49. 
Baltimore  &  Ohio  Railroad  Co.  v. 

Harris.  49. 
Baltimore   &   Ohio   Railroad   Co.. 

Marshall  v..  49. 
Bank  etc.  v.  Daniel.  46. 
Bank  v.  Deveaux.  31. 
Bank  v.  King  Bridge  Co..  69. 
Bank  of  Omaha  v.  Douglas  County. 

.51. 
Bank  of  Yicksburg  v.  Slocomb.  15. 

31. 
Barclay  v.  Levee  Commissioners. 

16.  42.  50.  71. 
Barnes  v.  Baltimore  City,  31. 
Barney,  De  Kraft't  v..  45. 
Barney  v.    Globe    Bank,    37.    50. 

72. 
Barrow.  Shields  v..  31. 
Barry  v.  Mercien,  45. 
Bates.  Darst  v.,  20.  78. 
Bauman  v.  Union  Paeiflc  Railroad 

Co..  10. 
Beardsley  v.  ToiTey,  16,  18,  52. 
Beardsley,  Torrey  v..  37. 
Beecher  &  Toncray  v.    Gillett   tt 

King.  25.  38. 
Beery  v.  Irick.  16,  24.  54. 
Bell  V.  Dix.  7.  45.  (iS.  78.  79. 
Benchley  v.  Gilbert.  6.  44. 
Benedict.  Williams  v..  39. 
Beimett  v.  Butterworth.  46. 
Bennett.  Doremas  v..  Mi. 


VI 


TABLE    OF   CASES    CITED. 


Benton,  Savings  Bank  v.,  52.  63. 

60.  79. 
Berlin  v.  Jones.  77. 
Bigelow  V.  Forrest,  7. 
Bigelovv.  Tuckerman  v..  31. 
Billings.  "Weeks  v..  37. 
Bird's  Executors  v.  Cockrem,  Re- 
ceiver, 52. 
Bixby  V.  Couse,  17.  20.  21.  23,  24. 
Blatchford.  Coal  Co.  v..  15,  16,  17, 

40.  48,  75. 
Bliss  V.  Kawson,  24. 
Bliss,  Peyton  v.,  6. 
Bliven  v.  Xew  England  Screw  Co., 

50. 
Bliven,  Xew  England   Screw  Co. 

v..  72. 
Blodgett.  Wilson  v..  31. 
Boggs  v.  Willard.  55. 
Bondurant.  Watson  v.,  39. 
Bonnafee  v.  Williams,  48. 
Boom  Co..  Patterson  v.,  36,  38. 
Booth.  Ableman  v.,  32. 
Boutwell,  Galvin  v.,  19,  75. 
Bo  wen  v.  Chase,  62. 
Bowen.  Toucey  v.,  41. 
Bowerbank.  Hodgson  v.,  71. 
Breedlove  v.  Xicolet.  19. 
Broderick's  Will  Case,  38,  39. 
Brown.  Gardner  v..  20.  40,  48. 
Browne  v.  Strode.  16. 
Bryant  v.  Rich.  31.  40,  53,  78. 
Bryant  v.  Scott.  24. 
Bryant.  Vannevar  v.,  24,  31,  40,  53 

(n.  78  and  79).  54,  57. 
Burdeck  v.  Hale.  65. 
Burnham  v.   Chicago.  Dubuque  & 

Minnesota  Railroad  Co..  24. 
Burnham.  Crawford  v..  46. 
Burson  v.  Park  Bank,  79. 
Burts  V.  Loyd.  39. 
Bushnell  v.  Kennedy,  16,  40,  49. 
Buttenvorth.  Bennett  v.,  46. 
Buttner  v.  Miller.  7,  75, 
Byrne.  Baird  v.,  19. 
Byrne.  Hinckley  v.,  19. 
Byrus.    Atlas    Insurance    Co.   v., 

77.  79. 


Caldwell.  Douglas  v.,  54. 

Campbell,  Scupps  v.,  42. 

Cape  Girardeau  &  State  Line  Rail- 
road Co.  V.  Winston  et  al.,  20. 

Carrington V.Florida  Railroad  Co., 
60.  73. 

Carter  v.  Treadwell.  48. 

Casanova,  Romie  v..  33. 

Case  V.  Clarke.  48. 

Case  et  al.  v.  Douglas  et  ah,  24,  25. 

Chandler  v.  Coe.  56. 

Charleston,  Weston  v.,  40. 

Charter  Oak  Fire  Insurance  Co.  v. 
Star  Insurance  Co.,  36,  38. 

Chase.  Bowen  v.,  62. 

Chatham  National  Bank  v.  Mer- 
chants' Xational  Bank,  18.  51 
(n.  73&75). 

Cheek,  Waggener  v.,  53,  54. 

Chew,  Gaines  v.,  39. 

Chicago  V.  Gage,  29  (u.  38  and  39). 

Chicago,  Union  Nat.  Bank  y.^  51. 

Chicago  etc.  Railroad  Co.,  Fisk 
v.,  51. 

Chicago  etc.  Railroad  Co.,  Hazard 
v.,  55. 

Chicago  etc.  Railroad  Co.  v.  Wliit- 
ton's  Admr..  13,  25.  49.  50,  51. 

Chicago  &  Alton  Railroad  Co., 
People  v.,  40. 

Chicago.  Danville  &  Vincennes 
Railroad  Co.,  Osgood  v.,  27, 
66.   69, 

Chicago,  Dubuque  &  Minnesota 
Railroad  Co.  et  al.,  Burnham 
v.,  24. 

Chicago  &  Northwestern  Railroad 
Co.  V.  Chicago  &  Pacific  Rail- 
road Co.,  49. 

Chicago  &  Northwestern  Railroad 
Co..  McKinley  v..  55. 

Chicago  &  Northwestern  Railroad 
Co.  V.  Wliiton.  79. 

Chicago  &  Northwestern  Railroad 
Co..  Wliiton  v.,  78,  79. 

Chicago  &  Pacific  Railroad  Co., 
Chicago  &  Northwestern  Rail- 
road Co.  v..  49. 


TABLE    OF    CASES    CITED. 


Vll 


Chicago,   Rock    Island    &  Pacific 

Railroad  Co.,  Hatch  v.,  17.  45, 

.51,  67,  68,  72. 
Chicago,  Rock  Island   &    Pacific 

Railroad    Co.,    Stanlej-    v.,    68, 

69,  77. 
Childress  v.  Emory,  48, 
Cisco,  Viator  v.,  6. 
City  Bank,  Wilson  v.,  19. 
City  of  Charleston,  Weston  v.,  40. 
Claflin  V.  Honseman,  32. 
Clark  V.  Dick,  7. 
Clarke,  Case  v.,  48. 
Clarke  v.  Mathewson.  48. 
Clearwater  v.  Meredith,  15,  31. 
Clinton  &  Springfield  Railroad  Co., 

Scott  et  al.  v.,  39,  40,  44,  58. 
Clippinger  v.  Missonri  Valley  Life 

Insurance  Co.,  75. 
Coal  Co.  V.  Blatchford,  15,  16,  17, 

40.  48,  75. 
Cockrem,    Receiver,    Bird's    Exr. 

v.,  52. 
Coe,  Chandler  v.,  56. 
Coffin,  Sweeney  v.,  18,  52. 
Cohens  v.  Virginia,  19,  32  (n.  41 

and  42) . 
Colorado    Central    Railroad    Co., 

Ames  v.,  32,  57,  .59,  60,  61. 
Commercial  Bank  v.  Simmons,  51. 
Commercial  and  Railroad  Bank  of 

Vicksburg  v.  Slocomb,  15,  31. 
Commonwealth  v.  Artman,  5,  7. 
Connor  v.  Scott,  33,  63. 
Cook.  Dart  v.,  IS. 
Cook,  Davis  v.,  18.  20.  23,  51. 
Cook  et  al.,  Taylor  v.,  15. 
Cooke  V.  State  Xational  Bank,  17. 

23,  25,  51. 
Cooper  V.  Galbraith,  48. 
Cooper,  The  Mayor  v..  7,  9,  13, 

32,  33. 
Comity  Court,  Spraggins  v.,  45. 
Couse,  Bixby  v..  17.  20,  21.  23,  24. 
Covington     Drawbridge     Go.     v. 

Shepherd  et  al.,  id. 
Cowles  V.  Mercer  County.  50. 
Craigie  v.  McArthur,  38.  39,  53,  56. 


Crane  v.  Reeder,  23,  55,  61,  78. 
Crawford  v.  Burnham,  46. 
Creighton,  Green's  Admx.  v.,  48. 
C^ibbs,  Rison  v.,  36. 
Critchlow,    Galpin    v..    7,   23,   53, 

54,  55. 
Cromie,  m  ?*e,  45, 

Cross,  Postmaster-General  v.,  46. 
Crothers,  Webster  v.,  IS,  52,  71. 
Cummins,  Mayor  etc.  v.,  17. 
Curtis,  Home  Insurance  Co.  v.,  74. 
Curtiss,  Strawbridge  v.,  15,  31, 
Custard.    Green    v,,     16,    41,    43, 

47,  76. 


Dana,  Lamar  v.,  7. 

Daniel,  Bank  etc.  v.,  46. 

D'Arcy,  Urtetiqui  v.,  70. 

Darst  v.  Bates,  20,  78. 

Dart  V.  Cook,  18. 

Dart  V.  McKinney,  42   (n.  52  and 
53),  43,  53,  54,  71. 

Dart  V.  Walker,  18,  20,  54,  57,  67. 

Davis  V.  Cook,  IS,  20,  23,  51. 

Da\'is  V.  Gray,  17. 

Da\is,  Home  Insurance  Co.  v.,  13. 

Da\is,  Wood  v.,  16,  17,  31,  40,  49. 

De  KraflFt  v.  Barney,  45. 
j   Dennistoun  v.  Draper,  5,  6,  9,  38, 
67,  72,  75. 

Deveaux,  Bank  v.,  31. 

Dexter,  Mallett  v..  39. 

Dick,  Clark  v.,  7. 

Dickinson.   Western  Union  Tele- 
graph Co.  v.,  51,  79. 

Dietz,  Payson  v.,  33. 

Dinsmore  v.  Philadelphia  &  Read- 
ing Railroad  Co.,  50. 

Dix,  Bell  v..  7,  45,  68,  78,  79. 

Dodds,  Meadow  Valley  Mine  Co. 
v.,  13,  62. 

Dodge  V.  Perkins,  48. 

Dbremas  v.  Bennett,  16. 

Douglas  V.  Caldwell,  54. 

Douglas  et  al..  Case  et  al.  v.,  24,  25. 

Douglas  County,  Bank  of  Omaha 
v.,  51. 


Vlll 


TABLE    OF    CASES    CITED. 


Doyle,  Hartford  Fire  Insurance  Co. 

v.,  V^. 
Draper.  Dennistoun  v.,  5.  6,  9,  SS, 

G7.  72.  75.  » 

Duncan.  McLeod  v.,  72. 
Dunlap.  Hatlley  v..  13.  OS,  74, 77,  79. 
Dunn.  Home  IJfe  Insurance  Co.  v., 

55.  79. 
Dunn.  Insurance  Co.  v..  13,  53,  .54, 

55.  .56.  67.  68,  69,  74,  76,  77,  78,  79. 
Dupont.  Muns  v..  46.  68. 
Durant  et  al..  Hazard  v.,  9  (n.  9 

and  10).  16,18,  23,  49,  65,  74. 
Du  Vivier  v.  Hopkins,  38,  67,  68. 
Dwight.  Pollard,  v.,  75. 
D'Wolf  V.  Eabaud,  48. 


EUernian  v.  Xew  Orleans  Railroad 

Co.,  29.  78. 
Ellzey,  Hepburn  v.,  31. 
Emory,  Childress  v..  48. 
Engle.  Stewart  v..  88. 
Ewing,  Suydam  v..  40,  41,  49,  71. 
Ex  parte  Andrews  &  Mott,  40. 
Ex  parte  Girard,  16, 17,  18,  37. 
Ex  parte  Milligan,  40. 
Ex  parte   State    Insurance   Co.   of 

Alabama.  76. 
Ex  parte  Turner,  16.  18,  37,  45. 
Express  Co.  v.  Kountze,  49. 
Express  Co.,  Maltz  v.,  50. 
Express  Co.  v.  Trego,  .54. 


Fallis  V.  McArthur,  18. 

Farmers'  etc.  Co.,Ketchuni  v.,  16. 

Farmers'  Loan  and  Trust  Co.  v. 

Maquillan.  26,  49,  01. 
Farmers"  Loan  and  Trust  Co.  et  al., 

Turner  Bros.  v..  34. 
Farwell,  Insbuch  v.  31. 
Fasnacht  v.  Frank.  53.  54.  76. 
Fashnacht,  see  Fasnacht. 
Field  V.  Lownsdale.  18,  20,  21,  52, 

76. 
Fields  V.  Lamb,  20,  21,  25. 
Finn.  Miller  v.,  53. 


Fisk  V.  Chicago  etc.  R.  R.  Co..  51. 
Fisk  V.  Union  Pacific  R.  R.  Co.,  8, 

9  en.  9  and  10),  18,  23,  41,  43.  45, 

52,  07,  68  (n.  107  and  108),  75, 

78. 
Fitzhugh,  Pratt  v.  45. 
Fleet,  Woodson  v..  7. 
Flox'cnce   Sewing  3Iachine   Co.  v. 

Grover  &  Baker  Sewing  Machine 

Co.,  24. 
Florida  Railroad  Co.,  Carrington 

v..  60,  73. 
Forrest,  Bigelow  v..  7. 
Fouvei-gne  v.  Xew  Orleans,  38. 
Fowler.  Warner  v..  6. 
Fowlkes  V.  Fowlkes,  5. 
Francis.  Insurance  Co.  v.,  49. 
Frank.  Fasnacht  v.,  53,  54,  76. 
Freeman  v.  Howe,  32. 
French  v.  Hay,  60,  66,  68.  79   (u. 

132  and  133). 
Friedman.  McStay  v..  33. 
Fuentes  v.  Gaines,  39. 
Fuentes,  Gaines  v.,  12,  16,  25,  38,. 

39,  43,  45,  77. 


Gage.  Chicago  v..  29  (n.  38  and  39). 

Gaines  v.  Cliew,  39. 

Gaines  v.  Fuentes  et  nl..  12,  10.  25. 

38,  39,  43,  45,  77. 
Gaines,  Fuentes  v.,  39. 
Gaines  v.  Hennen,  39. 
Gaines  v.  New  Orleans,  39. 
Gaines,  State  v..  5. 
Galbraith.  Cooper  v..  48. 
Gallagher.  Ober  v..  31. 
Gallahue's    Admr..    Baltimore    & 

Ohio  Railroad  Co.  v..  49. 
Galpin  v.  Critchlow.  7.  23.  53.  54. 

55. 
Galvin  v.  Boutwell.  19,  75. 
Garden  City  Mamifacturing  Co.  v. 

Smith.  72. 
Gardner  v.  Brown,  20,  40.  48. 
Garrett.  Andrews.  Exr..  v.,  01. 
Gaughan  v.  Northwestern  Fertil- 

izino;  Co..  5. 


TABLE    OF    CASES    CITED. 


IX 


Geyer  v.  Life  Ins.  Co.,  4S. 
Gibbons,  State  v.,  44. 
Gibson  v.  Johnson,  53. 
Gilbert,  Benchley  v.,  6,  44. 
Gillett  &  King,  Beeclier  &  Toncray 

v..  25,  38. 
Gii-ard,  Ex.  parte,  IG,  17,  IS,  37. 
Globe  Bank,  Barney  v.,  37,  50,  72. 
Gorbach,  Knickerbocker  Life  Ins. 

Co.  v.,  75. 
Gordon  v.  Longest,  13,  46  (n.  59 

and  62).  68,  69  (n.  108  and  109), 

74,  76,  77.  79. 
Goshorn  v.  Supervisors,  49. 
Gray,  Davis  v.,  17. 
Green  v.  Custard.  16,  41,  43,  47,  76. 
Green  v.  L^nited  States,  36. 
Green's  Adrax.  v.  Creigliton.  48. 
Grover  &  Baker  Sewing  Machine 

Co.,   Florence   Sewing  Machine 

Co.  v.,  24. 


Hadley  v.  Dunlap.  13,  68,  74,  77, 

79. 
Hagan  v.  Walker,  31. 
Hale,  Burdeck  v.,  65. 
Hall  V.  Eicketts,  55. 
Hargroves  v.  Eedd,  39. 
Harris,  Baltimore  &  Ohio  Railroad 

Co.  v.,  49. 
Hartford    Fire    Insurance    Co.    v. 

Doyle,  13. 
Hartford  Ins.  Co.,  Whittier  v.,  53, 

54,  56,  57. 
Hartshorn  v.  Wi'igljt,  46. 
Hatch  V.  Chicago,  Rock  Island  & 

Pacific  Railroad  Co.,  17^^45,  51, 

67,  68,  72. 
Hatch  V.  Preston,  36. 
Hay,  French  v.,  60,  (56,  68,  79  (n. 

132  and  133) . 
Haynes,  Hodgkins  v.,  20. 
Hazard  v.  Chicago   etc.   Railroad 

Co..  55. 
Hazard  v.  Durant  et  aL,  9  (n.  9  and 

10).  16,  18.  23.  49,  65,  74. 
Heath  v.  Austin.  75.  76. 


Hendren,  New  York  Life  Ins.  Co. 

v.,  32. 
Hennen,  Gaines  v.,  39. 
Hepburn  v.  Ellzey,  31. 
Ilerryford  v.  .Vetna  Insurance  Co., 

67,  (>S. 
Hinckley  v.  Byrne,  19. 
Hoadley  v.  San  Francisco,  61. 
Hobbs  v.  Manhattan  Insurance  Co., 

51. 
Hodgkins  v.  Haynes,  20. 
Hodgson  V.  Bowerbank,  71. 
Hodgson  V.  Milward,  5,  7. 
Holden  v.  Putnam  Fire  Insurance 

Co..  13,  63,  69,  79. 
Holmes  v.  Jennison,  40. 
Home  Insurance  Co.  v.  Curtis,  74. 
Home  Insurance  Co.  v.  Davis,  13. 
Home  Life  Insmance  Co.  v.  Dunn, 

o5,  79. 
Hook,  Payne  v.,  38,  39. 
Hopkins,  Du  Vivier  v.,  38,  67,  68. 
Horn,  Lockhart  v.,  30. 
Hough  v.  Western  Transportation 

Co.,  18,  45,  78. 
Houseman,  Claflin  v.,  32. 
Houston,  Rice  v.,  48. 
Hovey,  Milligan  v.,  7. 
Howe,  Freeman  v.,  32. 
Hubbard  v.  Railroad  Co.,  16. 
Hughes,  Kellogg  v.,  53,  54. 
Hulsecamp  v.  Teel,  46. 
Hunter's  Lessee,  Martin  v.,  5,  32. 


Imi)erial  Fire  Insurance  Co.,  Terry 
v..  51. 

Indianapolis  etc.  Railroad  Co.  v. 
Risley,  63,  79. 

Indianapolis,  Bloomington  &  Wes- 
tern Railroad  Co.  et  a?..  Turner 
Bros,  v.,  34. 

Insbuch  V.  Farwell,  31. 

In  re  Cromie,  45. 

Ill  re  Girard.  16.  17,  18. 

Ill  re  Turner,  16,  18,  37,  45. 

Insurance  Co.  v.  Byrus,  77,  79. 

Insurance  Co.  v.  Curtis,  74. 


TABLE    or    CASES    CITED. 


Insurance  Co.  v.  Da\is.  13. 
Insurance  Co.  v.  Doyle,  13. 
Insurance  Co.  v.  Dunn,  13.  53.  .54, 

55.  56.  67.  68.  69,  74,  76,  77,  78, 
79. 

Insurance  Co.  v.  Francis,  49. 
Insurance  Co.  Herrj'iord  v.,  67,  68. 
Insurance  Co..  Hobbs  v.,  51. 
Insurance  Co.,  Holdeu  v.,  13,  63, 

69.  79. 
Insurance  Co.,  Jones  v..  69. 
Insurance  Co.  v.  Massachusetts,  50. 
Insurance  Co.,  Michigan  Central 

Kailroad  Co.  v.,  58. 
Insurance  Co.  v.  Morse,  13,  78. 
Insurance  Co.,  Morton  v.,  51. 
Insurance    Co..   Pax'tridge  v.,   41. 

43,  67. 
Insurance  Co.,  Pechner  v.,  63. 
Insurance  Co.,  Sayles  v.,  16,  37,  50. 
Insurance  Co..  Stevens  v.,  13,  68, 

69,  74.  77,  78,  79. 
Insurance  Co.,  Terrj'  v.,  51. 
Insurance  Co.,  Whittier  v.,  53,  54, 

56.  57. 

Insurance  Co.,  Young  v..  58.  60. 
Irick,  Beery  v.,  16,  24.  .54. 
Irsine  v.  LoA\Ty,  15. 


Jackson  v.  Twentyman,  19. 
Jennison,  Holmes  v..  40. 
Joliuson.  Gibson  v.,  .53. 
Johnson  v.  Monell.  13,  22,  24,  25, 

26,  52,  53.  ,54.  63. 
Johnson.  Wetherbee  v.,  7. 
Jones  V.  Amazon  Ins.  Co..  69. 
Jones  V.  Andrews,  31. 
Jones,  Berlin  v.,  77. 
Jones  V.  League,  48. 
Jones  V.  Oceanic  Steam  Navigation 

Co..  8,  9. 
Judge,  The.  State  v.,  77-8. 
Justices.  Tlie.  v.  MurraA%  7,  53,  54. 


Kain  v.  Texas  Pacific  Railroad  Co., 
7.  9,  60,  62. 


Kanouse  v.  Martin,  13,  42,  46,  47, 

67,  68   (n.  107  and  108).  69,  74, 

77,  79. 
Kanouse,  Martin  v.,  42. 
Karrahoo  v.  Adams,  19. 
Kaufman  v.  MeXutt,  60. 
Kawson.  Bliss  v.,  24. 
Kellogg  V.  Hughes,  53,  54. 
Kennedy,  Bushnell  v.,  16,  40,  49. 
Ketchum  v.  Farmers'  etc.  Co.  16. 
King  v.  Wilson.  46. 
King  Bridge  Co.,  Baiak  v.,  69. 
King  of  Spain  v.  Oliver,  51 . 
Kingsbury  v.  Kingsbury,  66. 
Knapp  V.  Troy  &  Boston  Railroad 

Co.,  17,  40,  49,  79. 
Knickerbocker  Life  Insurance  Co. 

V.  Gorbach,  75. 
Kountze,  Express  Co.  v.,  49. 


Ladd  V.  Tudor,  46,  68. 

Lamar  v.  Dana,  7. 

Lamb,  Fields  v.,  20,  21,  25. 

Lanz  V.  Randall  et  al.,  19,  48. 

League,  Jones  v..  48. 

Lee  V.  Lee,  45. 

Lee  V.  Watson,  46. 

Letson,  Louisville  Railroad  Co.  v., 

16,  31,  49. 
Levee  Commissioners.  Barclay  v.. 

16,  42,  50,  71. 
Levi.   Western    L^nion    Telegraph 

Co.  v.,  46  (n.  58.  .59  and  62). 
Lewis  V.  Smythe,  54.  59. 
Life     Insurance    Co.,    Clippinger 

v..  75. 
Life  Insurance  Co.  v.  Dunn,  55,  79. 
Life  Insurance  Co.,  Geyer  v.,  48. 
Life    Insurance    Co.   v.    Gorbach, 

75. 
Life   Insurance   Co.    v.    Hendren, 

32. 
Life  Insurance  Co.,  Morton  v..  51. 
Life  Insurance  Co.,  Shaft  v.,  79. 
Liverpool  Insurance  Co.  v.  Massa- 
chusetts, 50. 
Lockhart  v.  Hoi'u,  30. 


TABLE    OF    CASES    CITED. 


XI 


Longest,  Gordon  v.,  13,  40  (n.  59 

and  62),  GS,  69  (n.  108  and  109), 

74,  76,  77,  79. 
Louisville  Railroad  Co.  v.  Letson. 

16,  31,  49. 
Lownsdale,  Field    v..   18.   20,   21, 

52,  76. 
Lowry,  Irvine  v..  15. 
Loyd,  Burts  v.,  39. 
Lyall,  Matthews  v.,  67.  69. 


Mack,  Stevens  v.,  6. 

Magee  v.  Union  Pacifle  Railroad 
Co.,  9. 

Mahone  v.  Manchester  etc.  Rail- 
road Corp.,  62,  67,  78. 

Mallett  V.  Dexter,  39. 

Maltz  V.  American  Express  Com- 
pany, 50. 

Manchester  etc.  Railroad  Corp., 
Mahone  v.,  62,  67,  78. 

Manhattan  Insurance  Co.,  Hobbs 
v.,  51. 

Manufacturers'  Bank  v,  Baack. 
49,  51. 

Maquillan,  Farmers'  Loan  and 
Trust  Co.  v.,  26,  49,  61. 

Marshall  v.  The  Baltimore  &  Ohio 
Railroad  Co.,  49. 

3Iartin  v.  Hunter's  Lessee,  5.  32. 

Martin  v.  Kanouse,  42. 

Martin,  Kanouse  v.,  13,  42,  46,  47, 
67,68  (n.  107  and  108),  69,  74, 
77,  79. 

Martin,  Tapley  v.,  63. 

Martin  v.  Taylor,  46. 

Massachusetts,  Liverpool  Insurance 
Co.  v.,  50. 

Mathewson,  Clarke  v..  48. 

Matthews  v.  Lyall,  67,  69. 

Matthews,  Wood  v.,  6,  75. 

Maj-o  v.  Taylor,  69. 

Mayor,  The,  v.  Cooper,  7,  9,  13, 
32,  33. 

Mayor  etc.  v.  Cummins.  17. 

Mc Arthur,  Craigie  v.,  38,  39, 53,  56. 

Mc Arthur,  Fallis  v.,  18. 


McBratney  v.  Usher,  18,  52. 
McCoy  v.  Washington  County,  50. 
McDowell,  United  States  v..  46. 
McGinnity  v.   White,   20,   46,   57, 

63. 
McKean  etc.  Navigation  Co.,  Wi- 

nans  v.,  16. 
McKee  v.  Raiiis.  7. 
McKee,  United  States  v.,  44. 
McKinley  v.  Chicago  &  Noi'thw^est- 

ern  Railroad  Co.,  55. 
McKinnej',  Dart  v.,  42  (n.  52  and 

53),  43,' 53,  54,  71. 
3IcLeod  V.  Duncan,  72. 
McNutt,  Kaufman  v.,  60. 
McStay  v.  Friedman,  33. 
Mc  Williams,  Thacher  v.,  76. 
Meadow  Valley  Mine  Co.  v.  Dodds, 

13,  62. 
Memphis,  Murdock  v.,  32. 
Mercer  County,  Cowles  v.,  50. 
Merchants"  National  Bank,  Chat- 
ham National  Bank  v.,  18,  51  (n. 

73  and  75) . 
Merchants'      and    Manufacturers' 

National  Bank  v.   Wheeler,  42, 

61,  63. 
Mercien,  Barrj'  v.,  45. 
Meredith,  Clearwater  v.,  15,  31. 
Merrill  v.  Petty,  46. 
Merwin  v.  Wexel.  18. 
Meserole  v.   Union    Paper  Collar 

Co.,  32. 
Michigan  Central  Railroad  Co.  v. 

Andes  Insurance  Co.,  58. 
3Iiller,  Buttner  v.,  7.  75. 
Miller  v.  Finn.  53. 
Milligan,  Ex  parte,  40. 
Milligan  v.  Hovey,  7. 
Milward,  Hodgson  v..  5.  7. 
Milwaukee  &  St.  Paul  Railway  Co., 

Minnett  v.,  49,  53.  54,  56,  62. 
Minnett  v.  Milwaukee  &  St.  Paul 

Railway  Co.,  49,  53,  54,  56,  62. 
Minot  V,  Philadelphia.  Wil.  &  B. 

Railroad  Co.,  49. 
Mississippi   &  Rum    River   Boom 

Co.,  Patterson  v.,  36,  38. 


Xll 


TA15LE    OF    CA8ES    CITED. 


Missouri,  Kausa?;  &  Texai^  Kailway 

Co..  Williams  v.,  49. 
Missouri     Valley    Life     Insurance 

Co.,  Clippinger  v..  75. 
Moftat  V.  Soley,  15. 
Monell,  Jolnison  v..  VS.  22,  24.  25. 

26.  52,  53,  54,  63.    « 
Montalet  v.  Murray,  19. 
Morcleoai.  Stewart  v..  20.  24,  75. 
^lorgan's  Heirs  v.  Morgan,  48. 
Morse,  Insurance  Co.  v.,  13.  78. 
Morton,  Anthon  v.,  7. 
Morton  v.  Mutual  Life  Insurance 

Co.,  51. 
Muns  V.  Dupont.  46,  68. 
Murdock  v.  Memphis,  32. 
Murray,  Montalet  v.,  19. 
Murray  v.  Patrie.  7.  32. 
Murray,  The  Justices  v.,  7.  53.  54. 
Mutual  Life  Insurance  Co..  Morton 

V.  51. 
Myers,  United  States  v.,  48. 


Nelson,  Roberts  v..  47,  iiS. 

Neves  v.  Scott,  41. 

New  England  Screw  Co..  Bliven 

v.,  50. 
New  England  Screw  Co.  v.  Bliven. 

72. 
New  Orleans,  Fouvergne  v.,  38. 
New  Orleans.  Gaines  v..  39. 
New  Orleans  v.  Winter,  31. 
New   Orleans    etc.   Railroad    Co.. 

Ellermanv..  29,  78. 
New  York  Life  Insurance  Co.  v. 

Hendron,  32. 
New  York     &    New    Hampshire 

Railroad  Co.,  Pomeroy  v.,  .51. 
Nicolet,  Breedlove  v.,  19. 
Northam,  Pratt  v.,  39. 
Nortliup.  Vaughan  v..  39. 
Northwestern       Fertilizing      Co., 

Gaughan  v..  5. 
Northwestern  Insurance  Comi)any. 

Sayles  v.,  16.  37,  50. 
Northwestern  Railway  Co.  v.  Chi- 
cago &  Pacific  Railwav  Co..  49. 


Nougues.  Trafton  v.,  33  (n.  43  and 
44),  ()4. 


Ober  V.  Gallagher,  31. 

Oceanic    Steam    Navigation    Co.^ 

.Jones  v.,  8,  9. 
Ohio  &  Mississippi  Railroad  Co.  v. 

Wheeler,  49.  50. 
Oil  Co.  V.  Ranch,  43,  53. 
Oliver,  King  of  Spain  v.,  51. 
Orner  v.  Saunders,  40. 
Osborn  v.  U.  S.  Bank,  9,  32,  40. 
Osgood    V.    Chicago,   Danville    & 

Vincennes     Railroad     Co.,     29. 

66,  69. 
Overman.  Parker  v.,  38,  66,  71.  77. 


Park  Bank,  Burson  v..  79. 

Parker  v.  Overman,  38.  66,  71,  77. 

Partridge  v.    Insurance    Co.,    41, 

43,  67. 
Patrie,  Murray  v.,  7.  32. 
Patterson  v.   Mississippi    &  Rum 

River  Boom  Co..  36,  38. 
Payne  v.  Hook,  38,  39. 
Payson  v.  Dietz,  33. 
Pechner  v.  Phcenix  Insuiance  Co., 

63. 
Pennsylvania  v.  Quicksilver  Mining 

Co.,  .50. 
Pennsylvania  Railroad  Co.,  Pi(iuig- 

not  v.,  .50. 
People  V.  Chicago  &  Alton  Rail- 
road Co.,  40. 
People  V.  Superior  Court,  63,  79. 
Perkins,  Dodge  v..  48. 
Peters  v.  Peters,  20. 
Peters.  United  States  v..  32. 
Petty,  Merrill  v..  46. 
Peyton  v.  Bliss.  6. 
Peyton  v.  Robertson.  46. 
Philadel])hia    etc     Railroad    Co., 

Dinsmore  v.,  50. 
Philadelphia.  Wil.  c'c  B.  Railroad 

Co..  Minot  v.,  49. 
Ph(enix  Ins.  Co..  Pechner  v..  63. 


TAHLE    OF    CASES    CITED. 


xni 


Plui'iiix  Insui-aiiee  Co.,  Stevens  v.. 
13.  68.  69.  74.  77.  78.  70. 

Pluenix  Mutual  Life  Insurance 
Co.,  Shaft  v..  70. 

Piijuignot  V.  Pennsylvania  Rail- 
road Co..  50. 

Pollard  V.  Dwiglit.  75. 

Ponieroy  v.  New  York  &  Xew 
Hnmpsliire  Railroad  Co.,  51. 

Postmaster-General  v.  Cross,  4G. 

Potter,  Robinson  v..  52. 

Pratt  V.  Fitzhugh,  45. 

Pratt  V.  Northani.  39. 

Preston,  Hatch  v.,  36. 

Price  V.  Sommers,  53.  56.  .50.  73. 

Pntnani  Fire  Insurance  Co.,  Hol- 
den  v..  13,  63.  60,  79. 


<iuicksilver  Mining  Co..  Pennsyl- 
vania v.,  50. 


Rabaud,  D'Wolf  v..  48. 

Railroad  Companies.  Thompson 
v.,  40,  43,  48.  49. 

Railroad  Company,  Ames  v..  32. 
57,50,  60,  61. 

Railroad  Co.  v.  Andes  Insurance 
Co.,  58. 

Railroad  Co.,  Bauman  v.,  10. 

Railroad  Co.,  Burnham  v.,  24. 

Railroad  Co.,  Carrington  v.,  60, 73. 

Railroad  Co..  Dinsmore  v.,  50. 

Railroad  Co.,  Ellerman  v..  29,  78. 

Railroad  Co.,  Fisk  v..  8,  9  (n.  9 
and  10),  18,  23,  41,  43,  45,  52,  67, 
68  (n.  107  and  108),  75,  78. 

Railroad  Co.  v.  Gallahue's  Admin- 
istrator, 49. 

Railroad  Co.  v.  Harris,  49. 

Railroad  Co.,  Hatch  v..  17,  45,  51, 
67,  68,  72. 

Railroad  Co.,  Hazard  v..  55. 

Railroad  Co..  Hubbard  v.,  16. 

Railroad  Co.,  Kaiu  v.,  7.  9,  60,  62. 

Railroad  Co.,  Knapp  v.,  17.  40, 
49,  79. 


Railroad  Co.  v.  Letson.  16,  31,  49. 
Railroad  Co.,  Magee  v.,  9. 
Railroad   Co..    Mahone  v.,  62.  67, 

78. 
Railroad  Co.,  Marshall  v..  49. 
Railroad  Co..  McKinley  v.,  55. 
Railroad  Co..  Minot  v.,  49. 
Railroad  Co.,  Osgood  v.,  29,  66,'69. 
Railroad  Co..  People  v.,  40. 
Railroad  Co..  Piquignot  v..  50. 
Railroad  Co..  Pomeroy  v.,  51. 
Railroad  Co.  v.  Risley,  63,  79. 
Railroad  Co..  Scott  et  al.  v.,  39, 40, 

44,  58. 
Railroad  Co.,  Stanley  v..  68.  69.  77. 
Railroad  Co.  et  ah.  Turner  Bros. 

v..  34. 
Railroad  Co.,  Turton  v.,  9,  10,  40, 

63. 
Railroad  Co.  v.  AVheeler.  49,  50. 
Railroad  Co.  v.  Whiton,  79. 
Railroad  Co.,  Whiton  v..  78.  70. 
Railroad  Co.  v.  \Yinston  et  al.,  20. 
Railway  Co.,  Minnett  v.,  49,  .53.  54, 

56.  62. 
Railway  Co.   v.   Ramsey,   63.   68, 

69.  77. 
Railway  Co.  v.  Whitton's  Adnu-., 

13,  25.  49,  50.  51. 
Railway  Co.,  Williams  v.,  49. 
Rains,  McKee  v..  7. 
Ramsey,  Railway  Co.   v.,    63,   68, 

69.  77. 
Randall  et  a/.,  Lanz  v,.  19,  48. 
Rathbone  Oil  Co.  v.  Ranch,  43.  53. 
Ranch,  Rathbone  Oil  Co.  v..  43,  53. 
Redd.  Hargroves  v.,  39. 
Reeder,  Crane  v.,  23,  55,  61,  78. 
Rice  V.  Houston,  48. 
Bich.  Bryant  v..  31.  40.  53.  78. 
Ricketts,  Hall  v.,  55. 
Rines,  Smith  v.,  16,  17,  18,  52. 
Risley.  Indianapolis  etc.  Railroad 

Co.  v.,  iVi,  79. 
Rison  V.  Cribbs.  36. 
Roberts  v.  Nelson,  47.  68. 
Robertson.  Peyton  v.,  46. 
Robinson,  xUlin  v.,  37. 


XIV 


TABLE    OF    CASES    CITED. 


Robinson  v.  Potter,  52. 
Romie  v.  Casanova,  33. 
Ryerson,  Allen  v..  20,  21. 


Salt  Company  v.  Wilkinson,  6. 

Sands  v.  Smith,  16,  24,  41,  43. 

San  Francisco,  Hoadley  v.,  61. 

Saunders,  Orner  v.,  40. 

Savings  Bank  v.  Benton,  52,  63, 
69,  79. 

Sayles  v.  Xorthwestern  Insurance 
Co.,  16,  37,  50. 

Schell,  Abranches  v.,  6,  44,  63. 

Scott,  Bryant  v.,  24. 

Scott,  Connor  v.,  33,  63. 

Scott,  Neves  v.,  41. 

Scott  et  al.  V.  Clinton  &  Spring- 
field Railroad  Co.,  39,  40,  44,  58. 

Scupps  V.  Campbell,  42. 

Sewing  Machine  Companies'  Case, 
12,  16,  20,  21,  23,  24,  31. 

Shaft  V.  Phoenix  Mut.  Life  Insur- 
ance Co.,  79. 

Shelton  v.  Tiffin,  48. 

Shepherd  et  al.,  The  Covington 
Drawbridge  Co.  v.,  49. 

Shaw,  Taylor  v.,  66,  79. 

Shields  v.  Barrow,  31. 

Simmons,  Commercial  Bank  v.,  51. 

Slocomb,  Commercial  and  Rail- 
road Bank  of  Vicksburg  v.,  15, 
31. 

Smith,  Garden  City  Manufacturing 
Company  v.,  72. 

Smith  V.  Rines,  16,  17,  18,  52. 

Smith,  Sands  v.,  16,  24,  41,  43. 

Smythe,  Lewis  v.,  54.  .59. 

Soley.  Moffat  v.,  15. 

Sommers,  Price  v.,  53,  56,  59,  73. 

Sparrow  v.  Strong,  45. 

Spraggins  v.  County  Court,  45. 

Stanley  v.  Chicago,  Rock  Island, 
&  Pacific  Railroad  Co.,  68,  69, 
77. 

Star  Insurance  Co.,  Charter  Oak 
Fire  Insurance  Co.  v.,  36,  38. 

State  v.  Gaines,  5. 


State  V.  Gibbons,  44. 

State  V.  The  Judge,  77-8. 

State  Insurance  Company  of  Ala- 
bama, Ex  parte.  76. 

State  Xational  Bank,  Cooke  v.,  17, 
23,  25,  51. 

Stevens  v.  Mack,  6. 

Stevens  v.  Phcenix  Insurance  Co., 
13,  68,  69,  74,  77,  78,  79. 

Stevenson  v.  Williams,  53,  54  (n. 
80  and  82) ,  56. 

Stewart  v.  Engle,  88. 

Stewart  v.  Mordecai.  20,  24,  75. 

Strawbridge  v.  Curtiss,  15,  31. 

Strode,  Browne  v.,  16. 

Strong,  Sparrow  v.,  45. 

Superior  Court,  People  v.,  63,  79, 

Supervisors,  Goshorn  v.,  49. 

Suydam  v.  Ewing,  40,  41,  49,  71. 

Sweeney  v.  Coffin,  18,  52. 


Tapley  v.  Martin.  63. 
Tarver  v.  Tarver,  39. 
Taylor  v.  Cook  et  al.,  15. 
Taylor,  Martin  v.,  46. 
Taylor,  Mayo  v.,  69. 
Taj^lor  V.  Shaw,  66,  79. 
Teel,  Hulsecamp  v.,  46. 
Telegraph  Co.  v.  Dickinson,  51,  79, 
Telegraph  Co.  v.  Levi,  46  (n.  58, 

59  and  62). 
Terry  v.  Insurance  Co.,  51. 
Texas  Pacific  Railroad  Co.,  Kain 

v.,  7,  9,  60,  62. 
Thacher  v.  Mc Williams,  76. 
The  Judge,  State  v.,  77-8. 
The  Justices  v.  Murray,  7,  53.  54. 
The  Mayor  v.   Cooper,  7,   9,    13, 

32,  33. 
Thompson  v.  Railroad  Companies, 

40,  43,  48,  49. 
Tiffin,  Shelton  v.,  48. 
Ton-ey  v.  Beardsle}%  37. 
Ton-ey,  Beaidsley  v.,  16,  18,  52. 
Toucey  v.  Bowen,  41. 
Trafton  v.  Nougues,  33  (u.  43  and 

44),  64. 


TABLE    OF    CASES    CITED. 


XV 


Tread  well,  Carter  v.,  48. 

Trego,  Adams  Express  Company 

v.,  54. 
Ti'oy  &  Boston  Kailroad  Company, 

Knapp  v..  17,  40,  49.  79. 
Trust  Company  v.  Maquillan,  26, 

49,  61. 
Trust  Company,  Turner  Bros,  v., 

34. 
Tuekerman  v.  Bigelow,  31. 
Tudor,  Ladd  v.,  46,  68. 
Turner,  Ex  parte,  16,  18,  37,  45. 
Turner     Bros.      v.    Indianapolis, 

Bloomington    &    Western  Rail- 
road Co.  et  al.,  34. 
Turton  v.  Union  Pacitic  Railroad 

Co.,  9.  10,  40.  63. 
Twentj^man,  Jackson  v.,  19. 


Union  National  Bank  v.  Chicago, 
51. 

Union  Pacific  Railroad  Co.,  Bau- 
man  v.,  10. 

Union  Pacific  Railroad  Co.,  Fisk 
v.,  8.  9  (n.  9,  and  10),  18,  23,  41, 
43,  45,  52, 67. 68  (n.  107  and  108), 
75,  78. 

Union  Pacific  Railroad  Co..  Magee 
v..  9. 

Union  Pacific  Railroad  Co.,  Tur- 
ton v.,  9,  10,  40,  63. 

Union  Paper  Collar  Co.,  Meserole 
v.,  32. 

United  States,  Green  v.,  36. 

United  States  v.  McDowell,  46. 

United  States  v.  McKee,  44, 

United  States  v.  Myers,  48. 

United  States  v.  Peters,  32. 

United  States,  Walker  v.,  46. 

United  States  Bank,  Osborn  v.,  9, 
32,  40. 

Urtetiqui  v.  D'Arcy,  70. 

Usher,  McBratney  v.,  18,  52. 


Vannevar  v.  Bryant,  24,  31,  40,  53 

(n.  78  and  79) ,  54,  57. 


Vaughan  v.  Northup,  39. 

Victor  V.  Cisco,  6. 

Vilas,  Akerly  v.,  41.  43,  45,  53,  54, 

55,  68  (n.  107  and  108),  71,  79. 
Virginia,   Cohens  v.,  9,  32  (n.  41 

and  42) . 


Waggener  v.  Cheek,  53,  54. 

Walker,  Dart  v.,  18,  20,  54.  57,  67. 

Walker,  Hagan  v.,  31. 

Walker  v.  United  States,  46. 

Ward  V.  Ai-redondo,  16  (n.  21  and 
22),  17,  18,  52,  53. 

Warner  v.  Fowler,  6. 

Washington  County,  McCoy  v.,  50. 

Washington  etc.  Railroad  Co.  v. 
Alexandria  etc.  Railroad  Co.,  25. 

Watson  V.  Bondurant,  39. 

Watson,  Lee  v.,  46. 

Webster  v.  Crothers,  18,  52,  71. 

Weed  Sewing  Machine  Co.  v. 
Wicks  et  al.,  17,  40,  49. 

Weeks  v.  Billings,  37. 

Wells,  Wright  v.,  47.  69. 

West  V.  Aurora,  36  (n.  46  and  47), 
37,  40,  52,  67. 

Western  Transportation  Company, 
Hough  v.,  18,  45.  78. 

Western  Union  Telegraph  Co.  v. 
Dickinson,  51,  79. 

Western  Union  Telegraph  Co.  v. 
Levi,  46  (n.  58,  59  and  62). 

Weston  V.  City  of  Charleston,  40. 

Wetherbee  v.  Johnson,  7. 

Wexel,  Merwin  v.,  18. 

Wheeler,  3Ierchants'  and  Manu- 
facturers' Bank  v.,  42,  61,  63. 

Wheeler,  Ohio  &  Mississippi  Rail- 
road Co.  v.,  49,  50. 

White,  McGinnity  v.,  20,  46,  57, 63. 

Whiton  V.  Chicago  «&  Northwest- 
ern Railroad  Co.,  78,  79. 

Whiton,  Railroad  Co.  v.,  79. 

Whittier  v.  Hartford  Insm-ance 
Co.,  53,  54,  56,  57. 

Whitton's  Admr..  Chicago  etc. 
Railway  Co.  v.,  13,  25,  49,  50,  51. 


X^'l 


TABLE    OF    CASES    CITED. 


Wicks  et  ah.  Sewing  Mat-hiue  Co. 

v.,17,  40,  49. 
Wilkinson,  Salt  Company  v..  G. 
Willard,  Boggs  v.,  5.5. 
Williams  v.  Benedict,  30. 
Williams,  Bonnafee  v.,  48. 
Williams    v.   Missonri.   Kansas  & 

Texas  Railway  Co..  40. 
Williams,  Stevenson  a.,  58.  54  (n. 

80  and  82),  5G. 
Williams  v.  Williams,  .54. 
Wilson  V.  Blodgett.  31. 
Wilson  V.  City  Bank.  19. 
Wilson,  King  v.,  46, 


Winans  v.  IMcKean  etc.  Navigation 

Co.,  16. 
Winston    et   ah,   Cape    Giraixlean 

etc.  Railroad  Co.  v.,  20. 
Winter,  New  Orleans  v.,  31. 
Wood  v.  Davis,  16, 17,  31.  40,  49. 
Wood  V.  Matthews,  6,  75. 
Woodson  V.  Fleet,  7. 
Wormley  v.  Wormley.  16. 
Wright,  Hartshorn  v.,  46. 
Wright  V.  Wells,  47,  69. 


Young  V, 

58,  60. 


Andes  Insurance    Co., 


REMOYAL  OF  SUITS 

From  State  Courts  to  Federal  Courts. 


SECTION  I. 


THE    FEDERAL    JUDICIAL    SYSTEM ITS    GROWTH    AXD 

IIVIPOETANCE. 

The  Act  of  September  24,  1789  (1  Stats,  at  Large, 
79),  styled  b}^  way  of  eminence  the  Judiciaiy  Act, 
Avas  passed  the  same  year  in  which  the  Constitution  went 
into  eflect,  and  organized  the  National  or  Federal  Judicial 
System,  substantially  as  it  exists  to-day.  No  structural 
changes  have  since  been  made  in  that  s^'stem,  and  consider- 
ing the  complex  and  highly  ai-tificial  nature  of  the  Federal 
jurisdiction,  the  Judiciary  Act  is  justly  to  be  regarded  as 
one  of  the  most  remarkable  instances  of  wise,  sao-acious» 
thoroughly  considered  legislative  enactments  in  the  historj^ 
of  the  law.  But  while  the  National  Judicial  System  as 
established  by  that  act  reinains  without  organic  chanoes, 
yet  changes  of  a  minor,  though  important  character  have  been 
made  from  time  to  time.  This  has  been  done,  however, 
without  disturbing  the  nice  adjustments  and  skillful  arrano-e- 
ments  of  the  original  plan.  The  system  of  1789  is,  in  form 
and  essence,  the  system  of  1876.  If  we  consider  the  intri- 
cate nature  of  the  relations  of  the  Federal  and  State  o-overn- 
ments ;  that  each  has  a  judicial  system  of  its  own  ;  that  the 
two  classes  of  courts  sit  in  the  same  territory,  and  exercise 
day  by  day  jurisdiction  over  the  same  subjects  and  the  same 


4  REMOVAL    OF    CAUSES. 

persons  ;  that  the  judicial  system  provided  hy  the  Judiciary 
Act  was  untried  and  experimental  :  that  serious  conflicts 
between  the  State  and  Federal  courts  have  been  almost 
wholly  avoided ;  that  the  Judiciary  Act  remains,  after  the 
lapse  of  nearly  a  centurj',  almost  intact, — it  will  appear  that 
the  admiration  with  which  it  has  been  regarded  ))y  states- 
men, lawyers  and  judges,  is  not  undeserved.  And  the 
changes  which  have  been  made  are  those  which  have  been 
demanded  by  convenience,  by  the  increase  of  the  population 
and  business  of  the  country,  and,  during  and  since  the  War 
of  the  Rebellion,  b}^  circumstances  brought  about  by  that 
unanticipated  event,  and  they  are  not  changes  made  neces- 
sary by  want  of  foresight  in  the  great  minds  which  devised 
and  enacted  the  original  scheme.  The  altered  condition  of 
the  country  has  made  still  further  changes,  or  rather  enlarge- 
7nents,  of  the  plan  necessary,  such  as,  for  example,  an  inter- 
mediate court  of  appeals,  for  the  relief  of  the  Supreme 
Court  and  the  convenience  of  suitors,  and  more  judicial 
force  in  the  districts,  etc.  ;  Init  it  is  not  the  purpose  of  this 
paper  to  enter  upon  this  topic. 

The  amendments  to  the  Judiciary  Act  made  from  time  to 
time  by  Congress  concerning  the  Federal  courts,  and  notably 
those  made  during  and  since  the  liebellion,  have  tended 
uniformly  in  one  direction,  namel}^  an  enlargement  of  their 
jurisdiction.  And  the  recent  act  of  March  3,  1875,  in  con- 
nection with  the  legislation  then  existing,  has  amplilied  the 
Federal  judicial  power  almost  t9  the  full  limits  of  the  con- 
stitution. The  history  of  the  Federal  jurisdiction  is  one  of 
constant  growth  :  slow,  indeed,  during  the  first  half-century 
and  more,  but  very  rapid  within  the  last  few  years.  For 
various  reasons,  which  we  need  not  stop  to  indicate,  the 
small  tide  of  litigation  that  formerly  flowed  in  Federal  chan- 
nels has  ssvollen  into  a  mighty  stream.  Certain  it  is  that  of 
late  years  the  importance  of  the  Federal  courts  has  rapidly 
increased,  and  that  much,  perhaps  most,  of  the  great  litiga- 
tions of  the  country  is  now  conducted  in  them.  This  is 
noticeably  so   in  the  Western   states.     These  observations 


REMOVAL    OF    CAUSES.  0 

have  been  made,  because  the}^  are  a  fitting  introduction  to  the 
special  topic  we  have  phiced  at  the  head  of  this  article, — 
Removal  of  Causes  from  the  State  Courts.  They  have, 
indeed,  been  suggested  by  that  topic  ;  for,  as -^^ill  be  seen  as 
we  proceed,  the  limited  right  in  this  regard  given  by  the 
Judiciarv  Act  has  been  enlarged  from  time  to  time,  until  a 
very  considerable  portion  of  the  contested  cases  in  the  Fed- 
eral courts  now  reach  them  through  this  channel. 

The  editor  of  the  Southern  Law  Review,  in  conse- 
quence of  the  recent  changes  in  the  legislation  on  this  im- 
portant subject,  and  the  uncertainty  which  many  lawyers 
suppose  to  surround  it  in  consequence  of  those  changes, 
has  requested  the  writer  to  prepare  a  practical  article 
which  shall  exhibit  the  present  state  of  the  law  concerning 
the  Right  to  removal  and  the  Mode  of  making  that  right 
available. 

The  cognizance  over  cases  removed  to  the  Federal  court 
has  sometimes  been  referred  to  the  «j?/)e?/«/e  jurisdiction,  on 
the  ground  that,  as  the  suit  is  not  instituted  in  the  Federal 
court  by  original  process,  the  jurisdiction  of  that  court 
must  be  appellate  ;^  but  Mr.  Justice  Nelson  accurately 
characterized  the  jurisdiction  in  such  cases  "  original  juris- 
diction,   acquired   indirectly  by   a  removal   from   the   State 

court.''  - 

SECTION  II. 

THE    PRINCIPAL    STATUTES    ON    THE    SUBJECT    OF    REMOVALS 

ACTS  OF  1789,   1866,  1867  and  1875. 

There  are  some  statutes  giving  the   right  of  removal  in 

special  cases  which  we  shall  only  mention  generally,  such  as 

the  right  to  remove  causes,  civil  and  criminal,  in  any  State 

court,  against  persons  denied  Cii'il  Rights  f  and  suits,  civil 

1  Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  849,  350. 

2Dennis^toun  v.  Draper,  5  Blatelif.  33G;    Fisk  v.  U.  P.  E.  R.  Co.,  6 

Blatchf.  362.  367. 

3U.  S.  Rev.  Stats.,  sees.  641,  642,  construed.  State  v.  Gaines,  2  Woods 
C.  C.  342.  (1874)  ;  Gaughan  v.  :N'.  W.  Fertilizing  Co.,  3  Bissell,  485,  (1873)  ; 
Fowlkes  V.  Fowlkes,  8  Chicago  Legal  Xews,  41 ;  Commonwealth  v.  Art- 
man,  3  Grant  (Pa.),  436;  Hodgson  v.  Milward,3  Grant  (Pa.),  418. 


6  EEMOVAL    OF    CAUSES. 

and  criminal,  against  Revenue  Officers  of  the  United  States, 
and  against  officers  and  other  persons  acting  under  the  Reg- 
istration Lams;^  and  suits  by  ^?zens  against  Civil  Officers  of 

4Kev.  Stats.,  title  XXVI,  "The  Elective  Franchise."  Rev.  Stats., 
sec.  643. 

Act  of  March  2,  1833  (4  Stats,  at  Large,  633),  known  as  the  ''/orce 
act.""  This  act  provided  for  the  removal  of  suits  and  prosecutions  com- 
menced in  a  court  of  any  state,  against  any  officer  of  the  United  States, 
for  any  act  done  under  the  revenue  laws  of  the  United  States,  or  under 
color  thereof.  See.  Rev.  Stats.,  sec.  643.  This  statute,  as  re-enacted, 
applies  to  the  removal  of  revenue  cases  under  "  any  revenue  law  of  the 
United  States."  Rev.  Stats.,  sec.  643.  It  was  pre\'iously  held  to  be  in 
force  as  to  removal  of  revenue  cases,  except  those  arising  under  the  in- 
ternal revenue  system.  Peyton  v.  Bliss,  1  Woolw.  170  (1868),  Miller,  J. ; 
Stevens  v.  Mack,  5  Blatchf.  514  (1867),  Benedict,  J. 

Construction  of  act  of  1833.  see  Dennistoun  v.  Draper,  5  Blatchf.  336, 
Xelsou,  J.;  Abranches  v.  Schell,  4  Blatchf.  256;  Wood  v.  Matthews,  2 
Blatchf.  370.  The  removal  may  be  had  without  regard  to  the  amount  in 
controversy.    Wood  v.  Matthews,  2  Blatchf.  370. 

A  suit  against  an  officer  of  the  United  States  is  not  removable  under 
the  act  of  1833  on  the  ground  that  the  act  complained  of  was  done 
under  the  instructions  of  the  treasury  department.  Vietor  v.  Cisco,  5 
Blatchf.  128 — but  see  Rev.  Stats.,  sec.  643.  See  Benchley  v.  Gilbert  (Act 
of  July  13,  1866,  sec.  67),  8  Blatchf.  147;  Salt  Co.  v.  Wilkinson,  S 
Blatchf.  30. 

■  Cases  arising  under  direct  tax  law  are  removable  under  act  of  1833. 
Peyton  v.  Bliss,  1  Woolw.  170,  Miller,  J. 

What  are  '^revenue  laws  "  under  the  act  of  March  2,  1833?  That  Act 
extends  to  an  action  in  the  State  court  against  a  postmaster  for  a  wrong- 
ful refusal  to  deliver  a  letter  to  the  plaiutiflf,  and  such  an  action  was  held 
to  be  removable  into  the  Federal  court.  Warner  v.  Fowler,  4  Blatchf. 
311  (1859),  IngersoU,  .1.  » 

An  action  of  slander  begun  in  a  State  court  against  a  collector  of  cus- 
toms, for  words  spoken  while  in  tlie  discharge  of  his  official  duty  and 
explanatorj'  of  it.  may  be  transferred  to  the  Federal  court  under  the 
"force  act"  of  March  2,1833  (4  Stats,  at  Large,  633),  which  provides, 
"that  any  case  where  suit  or  prosecution  shall  be  commenced  in  a 
court  of  any  state  against  any  officer  of  the  United  States,  for  or  on  ac- 
count of  any  act  done  under  the  revenue  laws  of  the  United  States,  or 
under  color  thereof,"  may  be  removed  by  the  defendant  to  the  Federal 
court.  The  question  arose  on  a  motion  to  remand ;  and  as  it  appeared 
from  the  petition  for  the  removal  that  the  words  complained  of  were 
.spoken  by  the  defendant,  while  in  the  discharge  of  his  official  duties  as 
collector,  and  in  connection  with  a  seizure  of  goods  for  an  alleged  viola- 
tion of  tlie  revenue  laws  (which  fact  the  motion  to  remand  necessarily 
admitted  to  be  true) ,  the  court  held  that  words  thus  spoken  were  to  be 


REMOVAL    OF    CAUSES.  7 

the  United  States  under  specified  circumstances  ;  ''  and  suits 
against  certain  Federal  Corporations,  or  their  members  as 
such  memljers,  may  be  removed  upon  verified  petition, 
"  statino;  that  such  defendant  has  a  defense  arisino-  under 
or  by  virtue  of  the  Constitution  or  of  any  treaty  or  law  of 
the  United  States."*^ 

This  act  is  not  repealed  by  the  act  of  March  3,  1875.^ 
It  applies,  in  its  true   construction,  only  to  corporations 

considered,  under  the  statute,  as  an  act  clone  under  the  revenue  laws  of  the 
United  States.  Woods,  Circuit  Judge,  says:  '•  Words  spoken  in  connec- 
tion with  tlie  act  of  seizure,  and  in  explanation  or  justitication  tliereof, 
become  part  of  the  act,  and  togetlier  with  tlie  seizure  form  one  trans- 
action."    Buttner  v.  Miller,  1  Woods  C.  C.  620  (1871). 

Act  of  March  3,  1863  (12  Stats,  at  Large,  757),  and  act  of  March  2, 
1867,  as  to  removability  of  suits  for  acts  done  during  the  late  rebellion 
under  Federal  authority.  See  Milligan  v.  Hovey,  3  Bissell,  13;  s.  C,  3 
Ch.  Legal  News,  321;  Clark  v.  Dick  (limitation),  1  Dill.  C.  C.  8;  Wood- 
son V.  Fleet,  2  Abb.  U.  S.  15;  Bigelow  v.  Forrest  (ejectment  suit  not  re- 
movable), 9  Wall.  339  (1869) ;  Murray  v.  Patrie  (removal  after  judg- 
ment) ,  5  Blatchf .  343  (1866) ,  reversed  in  The  Justices  v.  Murray,  9  Wall. 
274  (1869).  This  last  case  holds  that  so  much  of  the  5th  section  of  the 
Act  of  March  3  (1863),  as  provides  for  the  removalof  a  judr/ment  in  a  State 
court,  where  the  cause  was  tried  by  a  jury,  for  re-trial  on  the  facts  and 
law  in  the  Circuit  court,  is  in  conflict  with  the  seventh  amendment  of  the 
Constitution,  and  void.  McKee  v.  Kains,  10  Wall.  22;  Galpin  v.  Critch- 
low,  112  Mass.  341  (1873);  Wetherbee  v.  .Johnson,  14  Mass.  412;  The 
Mayor  v.  Cooper,  6  Wall.  247;  Lamar  v.  Dana,  10  Blatchf.  34;  Bell  v. 
Dix,  49  N.  Y.  232;  Anthon  v.  Morton,  15  Am.  Law  Keg.  (N.  S.),  556  ; 
Hodgson  V.  Milward,  3  G-rant  (Pa.),  418.  Criminal  case  can  not  be  re- 
moved before  indictment  found  in  the  State  court.  Commonwealth  v . 
Artman,  3  Grant  (Pa,),  436. 

5Kev.  Stats.,  sec.  644. 

6  Act  of  July  27,  1868.     (15  Stats,  at  Large,  227;  Eev.  Stats.,  sec.  640.) 
This  statute,  as  found  in  sec.  640  of  the  Kevised  Statutes,  is  as  follows : 

"Any  suit  commenced  in  any  court  other  than  a  Circuit  or  District  court 
of  the  United  States  against  any  corporation  other  than  a  banking  cor- 
poration, organized  under  a  law  of  the  United  States,  or  against  any 
member  thereof  as  such  member,  for  any  alleged  liability  of  such  corpo- 
ration, or  of  such  member  as  a  member  thereof,  maybe  removed,  for  trial, 
in  the  Circuit  court  for  the  district  where  such  suit  is  pending,  upon  the 
petition  of  such  defendant,  verified  by  oath,  stating  that  such  defendant 
has  a  defense  arising  under  or  by  virtue  of  the  Constitution  or  of  any 
treaty  or  law  of  the  United  States.  Such  removal,  in  all  other  respects, 
shall  be  governed  by  the  provisions  of  the  preceding  section." 

7  Kain  v.  Texas  Pacific  R.  R.  Co.,  3  Cent.  L.  J.  12,  Duval,  J. 


8  REMOVAL    OF    CAUSES. 

orffjinizcd  uiitloi'  ;i  law  of  Confjress,  and  does  not  include 
national  banks,  which  are  expressly  excepted,  nor  corpora- 
tions created  by  foreign  governments  or  by  the  several 
states.** 

Under  this  act  Mr.  Justice  Nelson  decided  at  the  circuit 
two  important  points,  which  we  notice,  as  they  illustrate 
more  or  less  questions  which  arise  under  other  removal  acts, 
and  particularly  the  act  of  March  3,  1875.  He  held:  1st. 
Where  oiie  or  more  of  the  defendants  have  presented  a  peti- 
tion for  removal  conforming  to  the  act,  and  thus  initiated 
the  removal,  it  is  not  competent  tor  the  State  court  to  take 
any  proceedings  in  the  cause,  other  than  to  perfect  the  re- 
moval, as  the  other  defendants  may  appear  and  present  their 
petitions,  which  they  may  do  at  different  times.  2d.  That 
the  joining  of  defendants  in  a  suit,  not  within  the  limitations 
of  the  act,  with  those  vvho  are,  can  not  have  the  effect  to  defeat 
the  Federal  jurisdiction.  He  adds  :  "If  this  were  permitted, 
the  privilege  extended  to  parties  setting  up  a  right  under 
the  Constitution  and  Laws  of  the  United  States,  would,  in 
most,  if  not  in  every  instance,  be  defeated,"  and  "  most  of 
these  removal  acts,  depending  principall}^  upon  the  subject- 
matter,  and  intended  to  secure  the  interpretation  of  the  Con- 
stitution and  Laws  of  the  United  States,  at  the  original 
hearing,  to  its  own  judiciary,  would  be  futile  and  worthless." 
In  such  cases,  "  if  these  outside  parties  are  deemed  material, 
or  are  really  material,  to  a  complete  remedy  in  behalf  of  the 
plaintirt",  they  must  be  regarded  as  subordinate  and  inci- 
dental to  the  princii)al  litigation  in  respect  to  which  the  act 
of  Congress  has  interposed  the  reniedj'  of  removal.  In  this 
way  the  right  of  the  parties  to  have  their  defense,  under  the 
Constitution  or  Laws  of  the  United  States,  tried  in  the  Fed- 
eral courts,  is  secured  :  and,  at  the  same  time,  the  remedy 
of  the  plaintiff  is  unimpaired."'' 

^. Jones  V.  Oceank-  Steam  Xav.  Co.,  11  Blatchf.  40G  (1873). 

yPisk  V.  Union  Pacific  R.  R.  Co..  8  Blatchf.  243, 248  (1871).  Tlie  act  of 
July  27,  1868  (Rev.  Stats.  640),  held  to  provide  only  for  a  case  in  which 
the  federal  corporation  or  member  thereof  was  the  sole  defendant.     Haz- 


KEMOVAL    OF    CAUSES.  ^ 

A  petition  for  removal  under  this  act  must  state 
that  the  corporation  or  member  thereof  applying  for 
removal  has  "  a  defense  arisino-  under  or  bv  virtue  of 
the  Constitution  of  the  United  States  or  some  treaty  or  law 
of  the  United  States  ;"  but  it  need  not  state  what  the  defense 
is,  nor  the  facts  constituting  it ; — this  is  a  matter  for  deter- 
mination in  the  Federal  court,  not  on  motion  to  remand, 
but  on  formal  pleadings,  or  pleadings  and  proof. ^" 

The  important  acts  of  general  operation  as  to  removals, 
and  which  relate  to  cases  that  daily  arise,  are  what  is  known 
as  the  12th  section  of  the  Judiciary  Act ;  the  act  of  July  27, 

arcl  V.  Durant  ct  al.,  9  K.  I.  G02.  609  (1868) .  by  Potter.  J.  But  it  was  decided 
otherwise  in  Fisk  v.  Union  Pacitic  Railroad  Co.,  6  Blatchf.  862;  s.  c.  8- 
ib.  243,  299;  and  this  latter  is,  undoubtedly,  the  true  construction  of  the 
act  on  this  point. 

10  Jones  V.  Oceanic  Steam  Xav.  Co.,  11  Blatchf.  406.  See  on  this  point 
The  Mayor  v.  Cooper,  6  Wall.  247 ;  Dennistoun  v.  Draper,  5  Blatchf.  336, 
Nelson,  .J. ;  Turton  v.  Union  Pacitic  R.  R.  Co.,  3  Dillon,  C.  C.  366,  Miller, 
J.  Compare  :Magee  v.  U.  P.  R.  R.  Co.,  2  Sawj'er,  447,  Hillyer,  J. ;  Haz- 
ard V.  Durant  et  al.,  9  R.  I.  602,  before  Potter,  J. ;  Kain  v.  Texas  Pacitic 
R.  R.  Co.  (East.  Dist.  Texas,  Duval,  J.),  3  Cent,  L.  J.  12  (1875)  ;  Fisk  v. 
U.  P.  R.  R.  Co..  8  Blatchf.  243;  Ih.  299.  Under  this  act,  Hillyer,  J.,  de- 
cided that  the  fact,  that  the  corporation  (the  Union  Pacific  Railroad  Co.) 
was  one  organized  under  a  law  of  the  United  States,  is  not  enough  to 
authorize  the  transfer  of  a  cause  to  the  Circuit  court  of  the  United  States. 
The  action  was  one  for  a  personal  injury  to  the  plaintiff";  and  it  appearing 
that  the  only  defense  made  by  the  answer  was  in  denial  of  the  imputed 
negligence,  the  decision  of  which  depended  entirely  upon  common-law 
principles,  and  not  upon  the  construction  of  any  act  of  Congress,  the 
cause  was,  on  motion,  remanded  to  the  State  court.  Magee  v.  U.  P.  R. 
R.  Co.,  2  Sawyer,  C.  C.  447  (1873).  Under  the  same  state  of  facts,  Mr. 
Justice  Miller  has  held  precisely^he  other  way.  Turton  v.  U.  P.  R.  R. 
Co..  3  Dillon.  C.  C.  366  (1875).  The  question  is  a  close  one;  and  the  sug- 
gestion presents  itself,  if  in  every  suit  against  a  federal  corporation, 
such  a  corporation  necessarily  has  a  defense  under  a  law  of  the  United 
States,  because  it  is  a  corporation  organized  under  a  law  of  the  United 
States,  why  did  Congress  not  unconditionally  provide  for  the  transfer  of 
all  suits,  without  requiring  a  verified  statement  that  they  have  "  a  defense 
arising  under  or  l)y  virtue  of  the  Constitution  or  a  treaty  or  a  law  of  the 
United  States?"  As  bearing  on  this  subject,  see  Osboru  v.  U.  S.  Bank,  9 
Wheat.  738;  Cohens  v.  Virginia.  6  Wheat.  264;  Hazard  v.  Durant  et  al., 
9  R.  I.  602 ;  Kain  v.  Texas  Pacific  R.  R.  Co.,  3  Cent.  L.  J.  12  (1875) ;  Fisk 
v.  Union  Pacific  R.  R.  Co.,  6  Blatchf.  362;  s.  c.  8  id.  243,  299.     The  view 


10  REMOVAL    OF    CAUSES. 

18()(),'Uhe  act  of  March  2,  18l)7,'-  known  as  the  "prejudice 
or  local  influence  act,"  and  lastly  the  act  of  March  3,  1875.^'^ 
This  last  named  act  was  passed  since  the  Revised  Statutes, 
and  consequently  is  not  to  be  found  therein.  The  12th  sec- 
tion of  the  Judiciary  Act,  the  act  of  July  27,  1866,  and  of 
Mai-ch  2,  1867,  above  mentioned,  although  technically  re- 
pealed by  the  Revised  Statutes  of  the  United  States,  are 
substantially  re-enacted  in  the  639th  section  thereof.  These 
statutes  are  the  foundation  of  the  law  on  the  subject  of 
removals  on  the  grounds  therein  provided  for,  and  the  prin- 
cipal purpose  of  this  article  is  to  give  a  reading  on  those 
statutes,  or,  in  other  words,  an  exposition  of  their  meaning 
in  the  light  of  the  adjudications  which  have  been  made  under 
them. 

The  text  of  these  statutes  is  so  essential  to  an  understand- 
ing of  the  subject,  that  we  reproduce,  for  convenience,  the 
more  material  portions  of  them  in  a  note.^^ 

of  Mr.  .Justice  Miller  in  tlie  case  of  Turton,  supra,  derives  strong  support 
in  the  consideration  that,  under  its  charter,  this  corporation  may  sue  and 
be  sued  originally  in  the  Circuit  court,  without  reference  to  citizenship 
or  otlier  ground  of  jurisdiction  (Baunian  v.  Union  Paeitio  R.  R.  Co.,  3 
Dillon.  3()7).  and  jurisdiction  by  removal  is  but  the  exercise  of  original 
jurisdiction  acquired  in  this  manner.     Ante,  sec.  1. 

11 14  Stats,  at  Large,  306. 

12 14  Stats,  at  Large.  55S. 

i3Actsof  1875,  p.  470. 

1* Section  030  of  the  Revised  Statutes  is  as  follows:  -Any  suit  com- 
menced in  any  State  court,  wherein  the  amount  in  dispute,  exchisive  of 
costs,  exceeds  tlie  sum  or  value  of  five  hundred  dollars,  to  be  made  to 
appear  to  the  satisfaction  of  said  court,  may  be  removed  foi-  trial  into 
the  Circuit  court  for  the  district  wlierS  such  suit  is  pending,  next  to  be 
held  after  the  tiling  of  tlie  jjctition  for  such  removal  hereinafter  men- 
tioned, in  tlie  cases  and  in  the  manner  stated  in  this  section. 

••  First.  Wlieu  the  suit  is  against  an  alien  or  is  by  a  citizen  of  the  state 
wherein  it  is  brought,  and  against  a  citizen  of  another  state,  it  may  be 
removed  on  the  petition  of  such  defendant,  filed  in  said  state  court  at 
the  time  of  entering  his  appearance  in  said  State  court."  [This  is,  sub- 
stantially, section  12  of  the  .Judiciary  Act.] 

••  Second.  When  the  suit  is  against  an  alien  and  a  citizen  of  the  state 
wherein  it  is  brought,  or  is  by  a  citizen  of  such  state  against  a  citizen  of 
the  same,  and  a  citizen  of  another  state,  it  may  be  so  removed,  as  against 
said  alien  or  citizen  of  another  state,  upon  the  petition  of  such  defend- 


REMOVAL    OF    CAUSES.  11 


SECTION  III. 

VALIDITY    OF    THE    REMOVAL    ACTS RIGHTS    PROTECTED    FROM 

INVASION    OR   DENIAL    BY    THE    STATES. 

The  power  of  Congress  to  authorize  the  transfer  of  cases, 
to  which  the  Federal  judicial  power  conferred  by  the  Consti- 
tution extends,  from  the  State  courts  to  the  Federal  courts, 
has  been  frequently  declared  by  the  Supreme  Court,  and  the 
constitutionality  of  the  removal   acts  of  1789,  1833,  1863, 

ant,  filed  at  any  time  before  the  trial  or  final  liearing  of  tlie  cause,  if,  so 
far  as  it  relates  to  him,  it  is  brought  for  the  purpose  of  restraining  or 
enjoining  him,  or  is  a  suit  in  which  there  can  be  a  final  determination  of 
the  controversy  so  far  as  concerns  him,  without  the  presence  of  the  other 
defendants  as  parties  in  the  cause.  But  such  removal  shall  not  take 
away  or  prejudice  the  right  of  the  plaintiff  to  proceed  at  the  same  time 
with  the  suit  in  the  State  court,  as  against  the  other  defendants."  [This 
is,  substantially,  the  act  of  July  27,  1866.] 

"  Third.  When  a  suit  is  between  a  citizen  of  the  state  in  which  it  is 
brought,  and  a  citizen  of  another  state,  it  may  be  so  removed  on  the 
petition  of  the  latter,  whether  he  be  plaintitt"  or  defendant,  filed  at  any 
time  before  the  trial  or  final  hearing  of  the  suit,  if  before  or  at  the  time 
of  filing  said  petition  he  makes  and  files  in  said  State  coui't  an  atfidavit 
stating  that  he  has  reason  to  believe,  and  does  believe  that,  from  preju- 
dice or  local  infiuence,  he  will  not  be  able  to  obtain  justice  in  such  State 
com-t."     [This  is,  substantially,  the  act  of  March  2,  1S67.] 

Section  639  of  the  Revised  Statutes  continues  as  follows:  "  In  order  to 
such  removal,  the  petitioner  in  the  cases  aforesaid  must,  at  the  time  of 
filing  his  petition  therefor,  otter  in  said  State  court  good  and  sufiicient 
siQ'etj^  for  his  entering  in  such  Circuit  court,  on  the  first  day  of  its  session, 
copies  of  said  process  against  him,  and  of  all  pleadings,  depositions,  tes- 
timony and  other  proceedings  in  the  cause,  or,  in  said  cases  where  a  cit- 
izen of  the  state  in  which  the  suit  is  brought  is  a  defendant,  copies  of  all 
process,  pleadings,  depositions,  testimony,  and  other  proceedings  in  the 
cause  concerning  or  affecting  the  petitioner,  and  also  for  his  there 
appearing  and  entering  special  bail  in  the  cause,  if  special  bail  was 
originally  requisite  therein.  It  shall  thereupon  be  the  duty  of  the  State 
court  to  accept  the  surety  and  to  proceed  no  further  in  the  cause  against 
the  petitioner,  and  any  bail  that  may  have  been  originally  taken  shall  be 
discharged.  Wlien  the  said  copies  are  entered  as  aforesaid  in  the  Circuit 
court,  the  cause  shall  there  proceed  in  the  same  manner  as  if  it  had  been 
brought  there  by  original  process,  and  the  copies  of  pleadings  sliall  have 
the  same  force  and  effect,  in  every  respect  and  for  everj^  puipose.  as  the 
original  pleadings  would  have  had  by  the  laws  and  practice  of  the  comts 
of  such  state  if  the  cause  had  remained  in  the  State  court." 


12  HKMOVAL    OF    CAUSES. 

186()  and  1867,  is  established  beyond  question.  "  The  va- 
lidity of  this  legislation,"  says  Mr.  Justice  Field,  "is  not 
open  to  serious  question,  and  the  provisions  adopted  have 
been  recognized  and  followed,  with  scarcely  an  exception, 
by  the  Federal  and  State  courts  since  the  establishment  of 

the  government.'  ^'^ 

Aa  of  March  3,  1875.  Tlie  second  and  third  sections  of  this  act  in 
rehition  to  the  removal  of  actions  are  as  foUows:  •*  §  2.  That  any  suit  of 
a  civil  nature,  at  law  or  in  equity,  riow  pendino-  or  hereafter  brought  la 
any  State  court,  where  tlie  matter  in  dispute  exceeds,  exclusive  of  costs,. 
the  sum  or  value  of  five  hundred  dollars,  and  arising  under  the  Consti- 
tution or  laws  of  the  United  States,  or  treaties  made,  or  Avhich  shall  he 
made,  under  their  authority,  or  in  which  the  United  States  shall  be 
plaintiff  or  petitioner,  or  in  which  there  shall  be  a  controversy  between 
citizens  of  difterent  states,  or  a  controversy  between  citizens  of  the  same 
state  claiming  lands  under  grants  of  difterent  states,  or  a  controversy 
between  citizens  of  a  state  and  foreign  states,  citizens  or  subjects,  either 
party  may  remove  said  suit  into  the  Circuit  court  of  the  United  States  for 
the  proper  district ;  and  when  in  any  suit  mentioned  in  this  section  there 
shall  be  a  controversy  which  is  wholly  ])etween  citizens  of  difterent 
states,  and  which  can  l)e  fully  determined  as  between  them,  then  either 
one  or  more  of  the  plaintifts  or  defendants,  actually  interested  in  such 
controversy,  may  remove  said  suit  to  the  Circuit  court  of  the  United 
States  for  the  proper  district." 

"  §  3.  Benioval — Proceedimjs. — That  whenever  either  part}',  or  any  one 
or  more  of  the  plaintifts  or  defendants  entitled  to  remove  any  suits  men- 
tioned in  the  next  preceding  section,  shall  desire  to  remove  such  suit 
from  a  State  court  to  the  Circuit  court  of  the  United  States,  he  or  they 
may  make  or  file  a  petition  in  such  suit  in  such  State  court  before  or  at 
the  term  at  which  said  cause  could  be  first  tried  and  before  the  trial 
thereof,  for  the  removal  of  such  suit  into  the  Circuit  court  to  be  held  in 
the  district  where  such  suit  is  pending,  and  shall  make  and  file  therewith 
a  bond,  with  good  and  sufficient  suretj'.  for  his  or  their  entering  in  such 
Circuit  court,  on  the  first  day  of  its  then  next  session,  a  copy  of  the  record 
in  such  suit,  and  for  paying  all  costs  that  may  be  awarded  by  the  said 
Circuit  court,  if  said  court  shall  hold  that  such  suit  was  wrongfully  or 
improperly  removed  thereto,  and  also  for  there  appearing  and  entering 
special  bail  in  such  suit,  if  special  bail  was  originally  requisite  therein. 
It  shall  then  be  the  duty  of  the  State  court  to  accept  said  petition  and 
bond,  and  i)n>ceed  no  further  in  such  suit,  and  any  bail  that  may  have 
been  originally  taken  shall  be  discharged;  and  the  said  copy  being  en- 
teretl  as  aforesaid  in  said  Circuit  court  of  th<^  United  States,  the  cause 
shall  then  proceed  in  the  same  manner  as  if  it  had  been  originally  com- 
menced in  the  said  Circuit  court,*"  etc.,  etc. 

15  Gaines  v.  Fuentes  et  al.,  U.  S.  Sup.  Court,  Oct.  Term,  1875, 3  Cent.  L.  J. 
371 ;  s.  c.  2  Otto.  10.   See  also  Sewing  Machine  Companies'  Case.  18  WalL 


REMOVAL    OF    CAUSES.  13 

111  this  couiiection,  it  may  also  he  ohserved  that  the  riiiht 
to  remove  cases  into  the  Federal  court,  when  the  terms  ui)on 
which  the  right  is  given  by  the  acts  of  Congress  in  that 
behalf  are  complied  with,  can  not  be  defeated  by  state  leg- 
islation. Therefore,  a  State  statute  which  allows  an  insur- 
ance company  to  do  business  in  the  state  only  on  condition 
that  it  will  agree  not  to  remove  suits  a<>;ainst  it  to  the  Fed- 
eral  courts,  is  unconstitutional,  and  such  an  agreement, 
though  entered  into  by  the  company,  is  void.^*' 


SECTION  IV. 

MATERIAL    ELEMENTS    OF    THE    RIGHT,    AS    GIVEN    BY    THE 
PRINCIPAL    STATUTES. 

The  material  elements  of  the  statutes  on  this  subject, 
it  will  be  perceived,  are  the  nature  of  the  suitf<  which 
may  be  removed  ;  the  amount  or  value  in  dispute  ;  i\\Q  partiei-^ 
to  the  suit,  and  in  this  connection  the  party  entitled  to  the 
removal  ;  the  time  when  the  application  must  be  made  ;  the 
mode  of  making  the  application,  and  herein  of  the  surety  in- 
bond,  etc.,  required,  and  the  effect  on  tlie  jurisdiction  of  the 
State  court  and  of  the  Federal  court  of  a  i)roper  application 
to  remove  a  cause  which  is  removable. 

553;  Johnson  v.  Monell.  1  Woolw.  394;  Meadow  Valley  Co.  v.  Dodds.  7 
Nev.  143;  Chicago  etc.  Railway  Co.  v.  Whitton's  Adnu-.,  13  AVall.  270; 
The  Mayor  v.  Cooper,  6  Wall.  247. 

16  Insurance  Co.  v.  Morse,  20  Wall.  445.  See  also  Insurance  Co.  v.  Dunn. 
19  Wall.  214;  Gordon  v.  Longest.  16  Pet.  97;  Kanouse  v.  Martin.  14  How. 
23;  s.  C,  15  How.  198;  Stevens  v.  Phoenix  Insurance  Co.,  41  N.  Y.  149; 
Holden  v.  Putnam  Insurance  Co.,  46  N.  Y.  1 ;  Hadley  v.  Dunlap.  10  Ohio 
St.  1.  Home  Insurance  Co.  v.  Davis.  29  Mich.  238,  is  inconsistent  with 
Insurance  Co.  v.  Morse,  supra.  In  Hartford  Fire  Ins.  Co.  v.  Doyle  (West. 
Dist.  Wis.,  Hopkins.  J.),  3  Cent,  L.  J.  41,  an  act  of  the  legislature  of  the 
state,  making  it  the  duty  of  the  secretary  of  state  to  revoke  licenses  of 
companies  for  removing  suits  to  Federal  courts,  was  held  void,  and  such 
revocation  restrained  by  injunction. 


14  REMOVAL    OF    CAUSES. 

SECTION  V. 

TiiK   12tii  section  of  the  judiciary  act. 

Before  entering-  in  detail  upon  the  scvenil  elements  of  the 
removal  enactments,  it  is  advisable  to  advert  to  some  gen- 
eral considerations  touching  these  several  statutes. 

We  commence  with  section  12  of  the  Judiciary  Act.  The 
reader  may  recur  to  its  language  as  re-enacted  in  substance 
in  the  Revised  Statutes,  given  in  a  note  to  a  preceding  sec- 
tion ;  and  it  is  important  to  remember  that  from  1789  until 
the  act  of  July  27,  18G(3,  above  mentioned,  the  12th  section 
of  the  Judiciary  Act  Avas  the  only  statute  authorizing  the 
removal  of  causes  from  the  State  courts  to  the  Circuit  court 
of  the  United  States,  on  the  ground  of  citizenship  of  the 
parties. 

Section  12  of  the  Judiciary  Act,  omittingthe  case  of  aliens, 
authorized  the  removal  by  the  defendant  (under  limitations 
therein  mentioned),  where  the  suit  is  commenced  in  the 
State  court  "  hij  a  citizen  of  the  state  in  ichich  the  suit  is 
hrouglit,  against  a  citizen  of  another  state.''  That  is,  if  the 
suit  is  by  a  resident  plaintiff,  the  non-resident  defendant 
may  have  it  removed  ;  ])ut  the  resident  plaintiff  could  not. 
Under  section  11  of  the  Judiciary  Act  as  to  original  suits  in 
the  Circuit  court,  a  non-resident  plaintifi' might  sue  in  the 
Circuit  court  a  resident  defendant;  but  if  the  non-resident 
plaintiff  elected  to  sue  in  a  State  court,  section  12  of  that 
act  ii'ave  neither  party  the  right  to  remove  the  cause  from  the 
State  court  to  a  court  of  the  United  States.  The  plaintiff  was 
not  Driven  the  right,  because  he  had  voluntarily  selected  the 
State  court  in  which  to  bring  his  action  ;  the  defendant  was  not 
iriven  the  ri^ht,  because  it  was  not  supposed  that  lie  would 
have  anv  orounds  to  object  that  he  was  sued  in  the  courts 
of  his  own  state.  So  that  the  right  of  removal  by  the  12th 
section  of  the  Judiciary  Act  is  limited  to  the  non-resident 
citizen  when  sued  by  a  resident  plaintiff  in  the  courts  of  the 
state.    By  section  11  of  the  Judiciary  Act,  the  Circuit  court. 


EEMOVAL    OF    CAUSES.  15 

has  jurisdiction  when  the  suit  is  between  a  citizen  of  the 
state  in  which  it  is  brought  and  a  citizen  of  another  state. 
This  was  construed  by  the  courts  to  mean  that,  if  there  were 
several  phiintifts  and  several  defendants,  each  one  of  each 
class  must  possess  the  requisite  character  as  to  citizenship.^^ 
For  example,  a  citizen  of  New  York  and  a  citizen  of  Geor- 
gia could  not  join  as  plaintiffs  in  suing  in  New  York  a  citi- 
zen of  Massachusetts,  if  found  in  New  York,  because  the 
plaintiffs  were  not  each  competent  to  sue  ;  for  the  citizen  of 
Georgia  could  not,  under  section  11  of  the  Judiciary  Act, 
sue  a  citizen  of  Massachusetts  in  New  York.^*  Some  of 
the  more  important  cases  touching  the  jurisdiction  of  the 
Circuit  court  under  the  11th  section  of  the  Judiciary  Act, 
and  concerning  the  effect  of  the  act  of  1839  (5  Stats,  at 
Large,  321),  which  relates  to  suits  commenced  in  the  Cir- 
cuit court,  are  referred  to  in  the  note,  as  they  have  a  bear- 
ino-  on  the  construction  of  the  12th  section.^" 

17  Strawbridge  v.  Curtiss,  3  Cranch,  267;  Coal  Co.  v.  Blatchford.  11 
Wall.  172. 

18 Moffat  V.  Soley,  2  Paine,  C.  C.  103.  This  restriction  on  the  jurisdic- 
tion of  the  Federal  courts  is  removed  by  the  act  of  March  3,  187Ji,  and 
now  these  courts  would  have  jurisdiction  of  such  a  suit  as  that  men- 
tioned in  the  text. 

19  The  case  of  the  Commercial  Bank  v.  Slocomb,  14  Pet.  60  (except  so 
far  as  it  has  been  since  oveiTuled  as  to  the  suability  of  corporations  in  the 
Federal  courts),  holds,  and  only  holds,  that  under  the  Judiciary  Act  the 
jurisdiction  of  the  Circuit  court  is  defeated  if  some  of  the  defendants  are 
citizens  of  the  same  state  with  the  plaintiff;  and  that  this  principle  was 
not  changed  by  the  act  of  February  28,  1839.  Same  principle  affirmed, 
at  the  same  term,  in  a  case  rightly  decided.  Irvine  v.  Lowry,  14  Pet,  293v 
See.  also,  Clearwater  v.  Meredith,  21  How.  489.  In  Taylor  v.  Cook  et 
al..  2  McLean,  516,  the  plaintiffs  were  citizens  of  New  York,  and  brougiit 
suit  in  the  Circuit  court  of  the  United  States  in  Illinois  against  Cook,  a 
citizen  of  Illinois,  and  Spaulding,  a  citizen  of  Missoxiri,  who  entered  a 
volimtary  appearance,  and  the  question  was,  whether  the  court  had  juris- 
diction, and,  aided  by  the  act  of  1839,  it  was  held  that  it  had.  Judge 
McLean,  in  delivering  his  opinion  says,  arguendo,  that  prior  to  the  act  of 
1839,  and  under  the  11th  section  of  the  Judiciary  Act  limiting  the  juris- 
diction to  suits  between  "  a  citizen  of  the  state  wliere  the  suit  is  brought 
and  a  citizen  of  another  state,'"  as  construed,  "  the  court  could  not  take 
jurisdiction  of  the  case ;  for  as  between  the  plaintifts  who  are  citizens  of 
Xew  York,  and  the  defendant,  Spaulding,  who  is  a  citizen  of  Missouri, 


1(>  REMOVAL    OF    CAISES. 

But  it  sliould  be  honio  in  mind  th:it  in  c-i.^-es  remo  ed 
IVoni  the  State  courts  the  jurtsdictwu  of  the  Oir<mit  court  is 
dependent  upon  the  act  under  vhich  the  suit  is  removed,  and 
not  upon  the  legishition  which  confers  jurisdiction  upon  that 
court  in  cases  originally  l)rought  therein  ;  and  therefore  the 
restrictions  on  the  jurisdiction  in  the  11th  section  of  the 
Judiciary  Act  have  no  application  to  cases  removed  under 
the  12th  section  of  that  act."-'^ 

Under  section  12  of  the  Judiciary  Act  regulating  remov- 
als, it  is  settled  that  a  cause  can  not  ])e  removed  there- 
under unless  cdl  the  defendants  ask  for  it :  that  to  bring  the 
case  within  the  act  cdl  the  plaintiffs  must  be  citizens  of  the 
state  in  which  suit  is  brought,  and  all  of  the  defendants 
must  be  citizens  of  some  other  state  or  states.'-^  But  this 
rule,  we  may  remark  in  passing,  does  not  apply  to  persons 
who  are  mere  nominal  or  formal  parties. - 

the  court  could  exercise  no  jurisdiction  in  the  state  of  Illinois;  because 
in  that  case  neither  party  would  reside  in  the  state  where  suit  is  brought." 
But  see  contra,  the  observations,  arrjiiendo,  of  Wayne,  J.,  in  Louisville 
Rai.lroad  Company  v.  Letson,  2  Howard,  on  pp.  553,  554.  in  which  he 
concludes  that  it  is  not  necessary  under  the  Judiciary  Act  that  all  of  the 
defendants  should  be  citizens  of  the  same  state,  provided  none  of  them 
are  citizens  of  the  same  state  with  the  plaintitl".  (See  infra,  sec.  8.)  The 
joinder  of  a  defendant  not  served,  and  who  does  not  api)ear,  who  is  a 
citizen  of  the  same  state  with  the  plaintift",  does  not  defeat  the  junsdic- 
tion  of  the  Circuit  court;  at  all  events,  it  does  not  since  the  act  of  1839. 
Doremas  v.  Bennett,  4  McLean.  224.  But  the  joinder  of  such  a  defend- 
ant who  is  sened,  if  he  be  not  a  mere  nominal  defendant,  does  defeat 
tlie  jurisdiction ;  at  all  events,  it  did  prior  to  the  act  of  March  3,  1875. 
Ketchum  v.  Farmers*  etc.  Co.,  4  McLean.  1 :  Coal  Co.  v  Blatcliford,  11 
Wall.  172;  Sewing  Machine  Co.  Case.  18  Wall.  553. 

-'"'fireen  v.  Custard.  23  TIow.  484:  Barclay  v.  Levee  Commission- 
ers. 1  Woods  C.  C.  254;  Bushnell  v.  Kennedy.  9  Wall.  387:  Sands  v. 
Smith.  1  Dillon.  293.  297:  Sayles  v.  N.  W.  Ins.  Co.  2  Curtis.  C.  C.  212; 
Gaines  v.  Fuentes,  U,  S.  Sup.  Court.  Oct.  term.  1875.  2  Otto.  10.  3  Cent. 
L.  J.  271 :  Winans  v.  McKean.  etc..  Nav.  Co.  6  Blatchf.  215. 

•■'I Beardsley  v.  Torrey.  4  Wash.  286.  (1822)  ;  Waid  v.  Arredondo.  1 
Paine.  410  (1825)  :  Hubbard  v.  R.  K.  Co.,  3  Blatchf.  84;  s.  C.  25  Yt.  715, 
(1853):  Beery  v.  Irick.  22  Gratt.  484;  £a:  por«e  Girard.  3  Wall.  Jr.  263; 
Smith  V.  Kines.  2  Sumn.  330;  Hazard  v.  Durant.  9  R.  I.  602;  lure 
Turner.  3  Wall.  Jr.  260;  Ih.  203. 

■"  Browne  V.  Strode. '5  Cranch.  303:  Wormley  v.  Worndey.  8  Wlieat. 
421:  Ward  V.  Arredondo.  s?/pr«  ;  Wood  v.  Da^^s.  18   How.   467.    Who  are 


REMOVAL    OF    CAUSES,  17 

Omitting  the  case  of  aliens,  it  will  be  percei\'ed  that  the 
12th  section  of  the  Judiciary  Act  (now  Rev.  Stat.,  Sec. 
639,  siil)-di vision  1),  gave  the  power  of  removal  only  under 
the  tollowing  circumstances  : 

1.  The  plaintiffs,  or  if  more  than  one,  then  all  of  the 
plaintiffs  must  be  citizens  of  the  state  in  which  the  suit  is 
brought ; 

2.  The  defendants,  or  if  more  than  one,  then  all  of  the 
defendants  must  be  citizens  of  another  state  or  states  ; 

3.  It  is  limited  to  civil  suits,  involving,  besides  costs,  a 
sum  or  A^alue  exceeding  $500  ; 

4.  The  right  of  removal  is  limited  to  the  defendant  or  de- 

nominal  parties  and  who  are  not,  see  also  Bixl)y  v.  Couse,  8  Blatchf. 
73;  Coal  Co.  v.  Blatchf  ord.  11  Wall.  172;  DaAisv.  Gray,  16  Wall,  220; 
Weed  Sewing  Machine  Co.  v.  Wicks,  3  Dillon,  261,  266;  Knapp  v. 
Troy  &  Boston  E.  E.  Co..  Sup.  Court,  Oct.  Tei-m,  1873,  20  Wall.  117; 
where  the  cases  are  cited  by  Mr.  Justice  Davis.  In  this  last  case,  the 
learned  judge  speaking  of  the  removal  act  of  1867,  says,  "it  does  not 
change  tlie  settled  rule  that  determines  who  are  to  be  regarded  as  the 
plaintiff  and  the  defendant;  and  as  the  plaintiff"  and  defendant  in  this 
action  were  both  citizens  of  New  York,  the  Circuit  court  had  no  jm-is- 
diction  to  entertain  it."  20  Wall.  124.  The  fact  that  defendants  are 
named  who  have  not  been  served,  or  have  not  appeared,  and  who  are  cit- 
izens of  the  same  state  with  the  plaintiff",  will  not  defeat  tlie  right  of 
removal.     Ex  parte  Girard,  3  Wall.  Jr.  263  (1858),  Grier,  J. 

Nominal  parties,  or  persons  made  parties  who  are  not  necessary  to  a 
determination  of  the  real  controversj%  Avill  not  defeat  the  right  to  a  re- 
moval. Mayor  etc.  v.  Cummins,  47  Ga.  321  (1872) ;  Wood  v.  DaAis,  18 
How.  467  (1855)  ;  Ward  v.  Arredondo.  1  Paine,  410  (1825),  Mr.  Justice 
Thompson. 

Fraudulent  or  improper  joinder  of  parties  to  prevent  removal.  See  Smith 
V.  Eines,  2  Sumner,  338;  Ex  parte  Girard,  3  Wall.  Jr.  263.  Improper 
joinder  of  causes  of  action.   Cooke  v.  State  Nat.  Bank,  52  N.  Y.  96  (1873). 

Officers  of  a  corporation,  joined -with  it  as  defendants  to  a  bill  in  equity, 
l3ut  as  to  whom  no  relief  was  prayed  in  their  individxial  capacity,  and 
no  relief  which  was  not  asked  as  against  the  corporation,  are  nominal 
parties  in  such  a  sense,  as  not  to  defeat  the  right  of  ^removal,  if  the  right 
otherwise  exists.  Hatch  v.  Ch.,  E.  I.  &  V.  E.  E.  Co.,  6  Blatchf.  105 
(1868). 

As  to  eff"ect,  under  the  act  of  July  27,  1868,  as  to  removal  of  cases  by 
Federal  corporations,  or  the  joinder  of  defendants  Avho  do  not  possess 
the  right  of  removal,  see  ante,  sec.  2.  and  note. 
2 


16  REMOVAL    OF    CAUSES. 

fcndiuits,  and  must  be  exercised  or  applied  for  by  (dl  of  the 
defendants. -'" 

0.  The  petition  for  the  removal  must  be  tiled  at  the  time 
the  defendant  or  defendants  entei'  their  appearunce  in  the 
State  court. -^  Hence,  if  some  of  the  plaintitis  were  not  cit- 
izens of  the  state  in  which  the  suit  was  brought ;  or  if  some 
of  the  defendants  were  citizens  of  the  same  state  with  plain- 

-"^^  Smith  V.  Eines,  2  Simiuer,  338;  Beardsley  v.  Torrey.  4  Wash.  C.  C. 
280 ;  Ward  v.  ^ViTedondo,  1  Paiue,  410 ;  Li  re  Turner,  8  Wall.  Jr.  260, 
Grier.  .J.;  In  re  Girard,  IJj..  203;  Field  v.  Lowusdale,  1  Deady,  288; 
Fisk  V.  Union  Pacific  K.  E.  Co.,  6  Blatchf.  3G2;  s.  c.,S  Blatehf.  243,  299; 
Dair  V.  Wallier,  4  l)aly'(X.  Y.),  188;  Menvin  v.  Wexel,  49  How.  (Pr.) 
Eep.  (X.  Y.),  115.  Tlie  jihove  cases  discuss  the  riglit  to  and  effect  of  suc- 
cessive removals  by  different  defendants  under  various  removal  acts. 

In  Fallis  v.  McVitlnu-.  1  Bond.  100  (1856).  it  was  held  tliat.  where  one 
oint  d<'fi:mhuitvQn\o\Q(\.  the  suit  (the  other  not  being  served),  tlie  plaintiff 
was  entitled  to  process  in  the  Federal  coiu't  against  tlie  defendant  who 
Avas  not  served  with  process  in  the  State  court  at  the  time  the  cause  was 
removed.  In  Field  v.  Lownsdale,  supra,  Deadj',  J.,  seems  to  be  of  a  dif- 
ferent opinion.  See  opinion  of  Mr.  Justice  Xelson  in  Fisk  v.  Union 
Pacific  E.  E.  Co..  8.Blatchf.  243  (1871)  ;  S.  C.  8  lb.,  299;  6  Id.  362. 

If  a  suit  be  brought  by  a  citizen  against  several  non-resident  jouii  debtors 
in  a  state  where  the  statute  authorizes  the  plaintiff"  to  proceed  against 
the  defendants  served,  and  if  he  recover  judgment,  it  may  be  enforced 
against  the  joint  pi-operty  of  all.  or  the  separate  property  of  the  defend- 
ants served,  and  thf  only  defendants  served  are  citizens  of  another  state, 
such  defendants  are  entitled  to  remove  the  cause,  under  the  .Judiciary 
Act.  though  the  co-defendant  not  served  does  not  join  in  the  application. 
Da\is  V.  Cook,  9  Xev.  134,  (1874). 

In  an  action  for  joint  indebtedness,  all  the  joint  defendants,  both  under 
the  act  of  July  27.  186G.  and  under  that  of  March  2.  1867,  nmst  apply  for 
the  removal; — no  one  can  remove  undei:  the  act  of  1866.  unless  a  separate 
judgment  can  be  rendered  against  him  witliout  the  presence  of  the  otlier 
defendants.     Merwin  v.  Wexel.  49  How.  (Pr.)  Eep.  115. 

-^Enterinfj  an  appearance ;  n)eaning  of.  construed  and  applied.  Chat- 
ham Xat.  Bank  v.  Merchants"  Xat.  Bank.  1  Hun,  (X.  Y.).  702.  (Sup. 
Court.  Special  term  1874) ;  Dart  v.  Cook,  9  X^ev.  134  (1874) ;  Hazard 
V.  Durant  et  ah,  9  E.  I.  ()02,  606;  Hough  v.  West.  Transp.  Co.,  1  Biss. 
425  (1864) ;  Sweeney  v.  Coffin.  1  Dill.  C.  C.  73.  Treat,  J.;  McBratney  v. 
Usher.  1  Dill.  C.  C.  367;  Webster  v.  Crothers.  1  Dill.  C.  C.  301.  Other 
cases  cited  infra,  sec  13. 

Under  sec.  12  of  the  Judiciary  Act  the  iiotition  need  not  be  verified. 
Sweeney  v.  Coffin,  1  Dill.  C.  C.  73. 

As  to  verification  and  mode  of  removal  under  otber  removal  acts.  lb. 
Infra,  sees.  12.  13.  14. 


REMOVAL    OF    CAUSES.  19 

tiff;  or  if  the  defendants  answered  or  submitted  to  the 
jurisdiction  of  the  State  court  before  applying  for  the  re- 
moval ;  or  if  all  the  defendants  (other  than  formal  or 
nominal  parties)  did  not  apply  for  the  transfer;  or  if  the 
amount  in  dispute  did  not  exceed  $500 — then,  and  in  each 
of  these  cases,  there  could  be  no  removal  under  the  Judici- 
ary Act.'-^ 

SECTION    VI. 

ACT    OF    JULY    27,    1866. 

The  act  of  July  27,  1.S66  (now  Kev.  Stat.,  sec.  639,  sub- 
division 2),  is  the  tirst  act  which  allowed  part  of  the  de- 
fendants to  remove  a  cause  ;  but  this  right  is  given  by  the 
act  only  under  specified  and  limited  circumstances.  Omit- 
ting the  case  of  aliens,  which  is  of  unfrequent  occurrence 
and  presents  little  that  is  peculiar,  the  following  conditions 
must  co-exist  to  authorize  a  removal  under  this  act : 

1.  The  suit  in  the  State  court  must  be  by  a  plaintiff  who  is 
a  citizen  of  tlie  state  in  which  the  suit  is  Ijrought. 

2.  It  must  be  against  a  citizen  of  the  same  state  and  a 
citizen  of  another  state  as  defendants. 

3.  The  amount  in  dispute  must  exceed  the  sum  or  value 
of  $500,  besides  costs. 

4.  The  removal  must  be  applied  for  "  before  the  trial  or 
final  hearing  of  the  cause  "  in  the  State  court. 

These  elements  concurring,  then  the  non-resident  defend- 
ant (not  the  resident  defendant),  may  have  the  cause  re- 
moved, (not  wholly),  but  only  so  far  as  relates  to  himself," 

25  See  Infra,  sees.  8,  9,  13.  15,  and  cases  cited. 

There  can  be  no  removal  under  the  Jndiciaiy  Act  (Kev.  Stats.,  sec. 
640,  sub-division  1),  if  tlie  plaintift"  is  an  alien.  Galvin  v.  Boutwell,  9 
Blatchf.  C.  C.  470. 

Federal  jurisdiction  dependent  on  alienage.  Hincklej'  v.  Byrne,  1 
Deady,  224;  Breedlove  v.  Xicolet,  7  Pet.  413;  Wilson  v.  City  Bank,  3 
Sumner,  422;  Montalet  v.  Murray,  4  Cranch,  46;  Jacksou  v.  Twentj'- 
man,2Pet.  136  ;/»/>•«,  sec.  Vl.iiote.  Kesident  unnaturalized  foreigners  are 
deemed  aliens.  Baird  v.  BjTue,  3  Wall.  Jr.;  Lanz  v.  Kandall.  3  Cent. 
L.  J.  688;  s.  c,  4  Dillon,  C.  C.  Indians  are  not  aliens.  Karrahoo  v. 
Adams,  1  Dill.  C.  C.  344. 


20  REMOVAL    OF    CAUSES. 

provided  also,  it  be  a  suit  "brought  for  the  purpose  of  re- 
straining or  enjoining  him,  or  is  a  suit  in  which  there  can  be 
ii  final  determination  of  the  controA-ersy,  so  far  as  concerns 
him,  without  the  presence  of  the  other  defendants  as  par- 
ties in  the  cause. "-^ 

26  Constructiou  and  extent  of  application  of  tlie  act  of  18G6.  Hoclg- 
kins  V.  Hayes,  9  Abb.  X.  Y.  Pr.  (X.  S.),  87:  Darst  v.  Bate?;.  5]  111.  439; 
Stewart  v.  Mordecai,  40  Ga.  1. 

In  Cape  Girardeau  and  State  Line  E.  R.  Co.  v.  Winston  et  al.A-  Cent. 
L.  J.  127  (1877),  before  Dillon  and  Treat,  JJ..  tlie  last  named  Judge  was 
strongly  inclined  to  regard  the  act  of  1866  as  unconstitutional,  and  as 
repealed  by  implication  by  the  act  of  March  3.  187.5.— the  Circuit  Judge 
gi\ing  no  opinion  on  these  points,  and  both  judges  concurring  in  hold- 
ing that,  Avhere  in  a  suit  brought  in  a  State  court  by  the  plaintiff  corpo- 
ration to  set  aside  a  deed  of  trust,  made  by  its  officers  and  another  corpo- 
ration of  the  same  state,  a  removal  of  the  cause  to  the  United  States  court 
was  sought  by  the  surviving  trustee  in  the  deed  of  trust  and  one  of  the 
bondholders  under  it.  the  latter  corporation  being  a  necessarj^  party,  and 
no  linal  or  eflectual  determination  of  the  case  made  by  the  bill  being 
possible  AAdthout  its  presence,  the  petitioners  could  not  have  the  cause 
removed  under  the  act  of  1866  (Rev.  Stat.,  sec.  639,  clause  2),  as  to  them. 
See  similar  case.  Gardner  v.  Bro^Aii.  21  Wall.  36,  cited  infra,  see.  9,  note. 

Construction  of  the  act  of  1866,  as  to  cases  in  which  there  can 
be  ajinal  determination  of  the  controversy  as  to  the  portion  of  the  de- 
fendants removing  the  cause,  without  the  presence  of  the  other  defend- 
ants. See  Bixby  v.  Couse,  8  Blatchf.  73:  Peters  v.  Peters,  41  Ga.  242; 
Allen  V.  Eyerson,  2  Dillon  C.  C.  501;  Case  of  Sewing  Machine  Cos.,  18 
Wall.  583;  s.  c.  below,  110  Mass.  70;  Field  v.  Lamb,  1  Deady,  430; 
Field  V.  Lownsdale,  1  Deady,  288  (1867),  This  last  case  holds  that  in 
a  suit  to  quiet  title  against  tenants  in  common,  one  of  the  defendants,  as 
such  tenant,  may  remove  the  case  to  the  Federal  court,  under  the  act  of 
1866.  if  he  is  otherwise  within  its  proAisions. 

In  McGinnity  v.  "NMiite.  3  Dillon  C.  C.  350.  it  was  held,  under  the  cir- 
cumstances, that  one  copartner  might  remove  the  cause  as  to  himself 
under  the  act  of  1866. 

ITie  act  of  1806  has  no  application  to  a  case  where  one  of  the  defend- 
ants is  an  alien,  and  the  other  defendants  are  citizens  of  another  state, 
and  none  of  the  defendants,  or  none  who  are  served,  are  citizens  of 
the  state  in  which  the  suit  is  brought.    Da^is  v.  Cook,  9  XeA'.  134  (1874). 

Under  a  joint  application  bj"  two  defendants,  the  removal  may,  under 
the  act  of  1866,  be  granted  to  one  and  refused  to  the  other.  Dart  v. 
Walker.  4  Daly  (X.  Y.),  188. 

Under  the  act  of  1866.  no  affidavit  of  local  prejudice  is  necessary,  such 
as  is  required  by  tlie  act  of  1867.    Allen  v.  Ryerson.  2  Dillon  C.  C.  501. 

As  to  time  and  mode  of  ;i])i)lyiHg  for  removal  under  the  act  of  1866.  see 
infra,  sees.  13,  14. 


REMOVAL    OF    CAUSES.  21 

The  express  provision  is  that  the  suit  as  between  the  phiin- 
tiff  (a  citizen  of  the  statej,  and  the  other  defendant  (also  a 
citizen  of  the  same  state  ^nth  the  phiintitf),  shall  proceed  in 
the  State  court  noth withstanding  such  removal  to  the  Fed- 
eral court.  As  between  the  plaintiti'  and  the  non-resident 
defendant  (citizen  of  another  state),  the  cause  proceeds  in 
the  Federal  court.  It  must  be  admitted  that  this  is  a  sin- 
gular result.  The  plaintift^'s  single  action  is  thus  split  into 
two — one  of  which  remains  in  the  State  court  to  be  adjudged 
by  it ;  the  other  goes  to  the  Federal  court  to  be  adjudged  by 
it.  This  act,  it  will  be  perceived,  has  no  reference  to  cases 
in  which  all  of  the  defendants  are  citizens  of  another  state, 
(that  being  then  provided  for  by  section  12  of  the  Judiciary 
Act),  nor  any  reference  to  the  cases  in  which  the  plaintifts 
are  citizens  of  any  other  state  than  tllat  in  which  the  suit  is 
brought.  Its  obvious  purpose  was  to  give  a  right  of  removal, 
in  the  cases  and  on  the  terms  prescribed,  to  the  non-resident 
citizen  who  was  joined  as  a  defendant  with  a  resident  citi- 
zen, when  sued  by  a  resident  plaintiti'.-'  It  may  be  inferred 
that  Congress  doubted  the  power  under  the  Constitution 
(art  3,  sec.  2),  to  authorize  the  removal  of  the  whole  case, 
since  part  of  the  case  provided  for  would  be  between  citizens 
of  the  soyme  state.  We  say  this  may  be  inferred,  since  other- 
wise we  can  scarcely  conceive  why  it  is  that  Congress  ^vould 
divide  one  case  into  two,  and  embarrass  the  parties  with  the 
inconvenience  and  additional  expense  resulting  therefrom. 
Speaking  of  this  act,  Mr.  Justice  Clitibrd  observes  :  "  Con- 
sidering the  stringent  conditions  which  are  embodied  therein, 
it  is  doubtful  whether  it  will  prove  to  be  one  of  much  prac- 
tical value. ""-^  The  necessity  for  this  act  grew  out  of  the 
narrow  construction  early  placed  on  the  Judiciary  Act,  the 
embarrassments  arising  from  which  had  been  so  long  felt, 
and  have  finally  led  to  the  act  of  March  o,  1875.     The  ex- 

«Bixby  V.  Conse,  8  BUitehf.  73;  Allen  v.  Ryerson,  2  Dillon.  .501; 
Field  V.  Lownsdale,  1  Deady.  288  (1867)  ;  Field  v.  Lamb.  lb.  430. 

•■isCase  of  Sewing  Machine  Companies,  IS  Wall.  553;  s.  C.  below.  110 
Mass.  70. 


22  REMOVAL    OF    CAUSES. 

penence  of  the  past  should  induce  great  caution  in  the 
courts  in  applying  to  that  act  the  rigid  principles  of  the 
early  adjudications  on  the  subject  of  Federal  jurisdiction.-^ 


SECTION  VII. 

ACT  OF  MARCH  2,  18*37 "  PREJUDICE  OR  LOCAL  INTLUENCE." 

We  now  come  to  the  act  of  March  2,  1867.^'^  It  purports 
to  be  an  amendment  to  the  act  of  eluly  27,  1866,  last  no- 
ticed, and  it  extends  the  right,  in  the  cases  therein  provided 
for,  as  well  to  j^laintiffs  as  to  defendants,  but  confines  it  to 
such  as  are  non-residents  of  the  state  in  which  the  suit  is 
brought,  and  makes  the  ground  of  removal,  not  alone  the 
citizenship  of  the  parties,  but  also  prejudice  or  local  influence. 
The  act  provides,  "That  where  a  suit  is  now  pending  or 
may  hereafter  be  brought  in  any  State  court  in  which  there 
is  a  controversy  between  a  citizen  of  the  state  in  which  the 
suit  is  brought  and  a  citizen  of  another  state,  *  *  * 
such  citizen  of  another  state,  whether  he  be  plaintitt'  or  de- 
fendant, if  he  will  make  and  file  in  such  State  court  an  affi- 
davit that  he  has  reason  to  believe  and  does  believe  that 
from  prejudice  or  local  influence  he  will  not  be  able  to  ob- 
tain justice  in  such  State  court,"  may  have  the  cause  re- 
moved to  the  Circuit  court  of  the  United  States.  It  will 
be  seen  that,  as  to  the  plaintifl",  this  act  follows  the  language 
of  section  11  of  the  Judiciary  Act,  and  not  of  section  12  of 
that  act ;  the  iDlaintiff"  ma}'  or  may  not  be  a  resident  of  the 
state  where  the  suit  is  brought  ;  and  the  right  of  removal  is 
given  to  the  non-resident  party,  l)e  he  the  plaintifl'  or  defend- 
ant. Construing  this  act,  Mr.  Justice  Miller,  in  Johnson  v. 
Monell,"'^  says  : 

"  The  only  conditions  necessanj  to  the  exercise  of  the  right 
of  removal  under  it  are  : 

'^  See  Infrri.  sec.  0  uiid  note,  and  sees.  12  and  13. 
30  14  Stats,  at  Large.  55S;  quoted  ante.  sec.  2.  note. 
31 1  Woohv.  390. 


EEMOVAL    OF    CAUSES.  23 

"1.  That  the  controversy  shall  be  between  a  citizen  of 
the  state  in  which  the  suit  is  brought  and  a  citizen  of  an- 
other state . 

"2.  That  the  matter  in  dispute  shall  exceed  the  sum  of 
five  hundred  dollars,  exclusive  of  costs. 

"3.  That  the,  party  citizen  of  such  other  state  shall  file 
the  repuired  afiidavit,  stating,  etc.,  the  local  prejudice. 

"4.  Giving  the  repuisite  surety  for  appearing  in  the  Fed- 
eral court."  *  *  *  "  Congress,"  adds  this  able  judge, 
"  intended  to  give  the  right  in  every  case  where  the  four 
repuisites  we  have  mentioned  exist." 

In  the  case  just  cited,  the  plaintiff"  was  a  citizen  of  Iowa, 
one  defendant  was  a  citizen  of  Nebraska,  and  the  other  of 
New  York  ;  but  the  last  was  not  served  with  process  and  did 
not  appear ;  and  it  was  held  that  the  plaintiff'  Avas  entitled, 
under  the  act  of  March  2,  1867,  to  have  the  case  transferred 
from  the  State  court  to  the  United  States  court,  after  a 
verdict  of  the  jury  in  the  State  court  in  his  favor  had  been 
set  aside  l^'the  court.  This  act,  let  it  be  noted,  only  applies 
where  one  of  the  parties  is  a  citizen  of  the  state  in  which 
the  suit  is  lirought,  and  the  adverse  party  is  a  citizen  of 
another  state — in  this  respect  conforming  to  the  previous 
legislation  on  the  subject.'^-     This  act  undoubtedly  grew  out 

32  Construction  and  extent  of  application  of  the  act  of  1SG7. — Policy 
and  pmpose  of  the  acts  of  1866  and  1867.  stated  by  Graves.  C.  J., 
iu  Crane  v.  Keeder,  28  Midi.  .527  (1874) ;  by  Potter.  .J.,  in  Hazard  v.  Pn- 
rant  et  al..  0  R.  I.  602  (1868) ;  by  Blatchford.  J.,  in  Fisk  v.  Union  Pacific 
R.  E.  Co..  6  Blatchf.  362;  by  Gray.  C.  J.,  in  Galpin  v.  Critohlow.  112 
Mass.  339  (1873). 

The  act  of  1867  (Eev.  Stats,  sec.  639.  cl.  3)  does  not  apply,  where  the 
cause  of  removal  is  alienage^  but  is  limited  to  citizens-  Crane  v.  Reeder, 
28  Mich.  527,  (1874)  ;  Davis  v.  Cook,  9  Nev.  134,  (1874). 

Under  act  of  1867  the  tcliole  suit  is  to  be  removed.  Sewing  Machine 
Cos."  Case.  18  Wall.  553;  s.  C.  below,  110  Mass.  81;  Cooke  v.  State  Xat. 
Bank,  52  X.  Y.  96,  (1873)  ;  s.  c.  below.  1  Lansing.  494.  And  all  the  defend- 
ants, not  nominal  or  merely  formal  parties,  nuxst  apply  for  the  rentoval. 
Bixbyv.  Couse  (Blatchford.  J.),  S  Blatchf.  73.  (1870):  Cooke  v.  State 
Xat.  Bank,  1  Lansing  (X.  Y.).  494:  s.  c.  52  X.  Y.  96.  (1873).  As  to 
who  are  nominal  or  formal  parties,  see  ante. 

Parties — Citizenship  under  act  o/lS67.    In  the  leading  case  on  this  stat- 


24  REMOVAL    OF    (^AUSP^S. 

of  the  condition  of  affiiirs  in  the  Southern  states  after  the 
War  of  the  Kebellion,  and  was  intended  to  afford  to 
plaintiffs   who    had  resorted  to  the    State   coiu't  the  right 

ute.  entitled  in  the  report  the  Sewing  Machine  Companies'  Case,  it  was 
decided  that  an  action  c-x  contractu,  hy  a  plaintiff  who  was  a  citizen  of  the 
state  in  which  the  snit  was  bronght,  against  two  defendants,  citizens  of 
other  states,  and  a  third  defendant,  a  citizen  of  the  same  state  as  the 
plaintiff,  was  not  removable  under  the  act  of  1867,  upon  the  petition  of 
the  two  non-resident  defendants,  (18  Wall.  553)  ;  and  the  same  principle 
was  re-asserted  in  a  subsequent  case,  where  the  removal  of  the  vjJiole 
suit,  imder  the  act  of  1867,  was  sought,  and  not  of  the  suit  as  to  the  non- 
resident defendants  under  the  act  of  1866.  Vannevar  v.  Bryant,  21  Wall. 
41;  Case  v.  Douglas,  1  Dillon,  299;  Johnson  v.  3Ionell  (change  of  resi- 
dence), 1  Woolw.  390;  Bixby  v.  Couse,  8  Blatchf.  73  (1870);  Florence 
etc.  Co.  V.  Grover  &  Baker  etc.  Co.,  110  Mass.  70,  affirmed  18  Wall.  553. 
In  the  case  of  Burnham  v.  Chicago,  Dubuque  &  Minnesota  Railroad 
Co.  et  ah,  the  Circuit  court  of  the  United  States,  for  the  district  of  Iowa, 
Maj^  term,  1876  (Miller  and  Dillon,  JJ.),  decided  the  following:  A  fore- 
closure suit  by  trustees  in  a  railway  mortgage,  who  are  citizens  of  Mas- 
sachusetts, was  commenced  in  one  of  the  State  courts  in  Iowa,  against 
the  debtor  company  (which  is  an  Iovki  corporation),  making  an  Illinois 
and  an  Indiana  corporation,  each  of  which  claimed  liens  upon  the  prop- 
erty, also  defendants  to  the  bill;  this  suit,  after  all  of  the  defendants  had 
answered,  was  removed,  in  1876,  to  the  Circuit  court  of  the  United  States 
for  the  district  of  Iowa,  upon  the  petition  of  the  plaintiffs  under  the  act 
of  1867.  Kev.  Stat.,  see.  639,  sub-di\asion  3.  The  debtor  corporation 
moved  to  remand  the  same  to  the  State  court,  because  all  of  the  defend- 
ants were  not  citizens  of  the  state  in  v;hich  the  suit  was  brought.  Held,  in- 
asnuich  as  the  case  was  one  clearly  within  sec.  2,  of  the  act  of  March  3,. 
1875,  in  respect  of  removals,  and  the  controversy,  one  in  relation  to  the 
priority  of  liens  between  citizens  of  different  states,  that  the  Circuit 
court  had  jurisdiction,  and  that  it  should  not  be  remanded.  See  Beery 
V.  Irick.  22  Graft.  484. 

Under  the  act  of  18G7.  Avhere  non-resident  and  resident  plaintiff's  are- 
joined,  the  non-resident  plaintiffs  can  not  remove  the  case  whoUj'^  or  as 
to  themselves.  All  the  plaintiffs  must  be  citizens  of  the  state  in  which 
the  suit  is  bronght.  Bliss  v.  Kawson,  43  Ga.  181  (1871).  See  Stewart 
V.  Mordecai,  40  Ga.  1 ;  Bryant  v.  Scott.  67  X.  C.  391  (1872) ;  Case  v. 
Douglas,  1  Dillon  C.  C.  299. 

In  Sands  v.  Smith,  1  Abb,  U.  S-  368,  s.  C,  1  Dillon.  290.  it  was  held 
that,  under  the  act  of  1867.  a  non-resident  plaintiff  might  remove  a  suit 
against  a  citizen  of  the  state  in  which  it  was  brought  and  a  citizen  of  a 
third  state  who  had  voluntarily  appeared,  as  to  all  the  defendants.  This 
seems  to  be  right  in  view  of  the  act  of  1839;  but  some  doubt  is  thrown 
upon  the  case  by  the  reference  to  it  in  the  Sewing  Machine  Cos.*  case,  18- 
Wall,  553.  ' 


REMOVAL    OF    CAUSES.  25 

to  transfer  their  suits  to  the  Federal  courts.*^  This  is  the 
first  act  that  in  any  event  extended  the  right  to  'A  2:)laintiff 
to  leave  the  forum  he  had  voluntarily  chosen,  and  in  this 
respect  was  an  entire  departure  from  all  the  previous  legis- 
lation. It  is  not  so  difficult  to  justify  the  act  in  this  respect, 
even  if  it  was  intended  to  be  permanent,  as  it  is  to  sustain 
the  pro\dsion  that  this  removal  may  be  had, -on  filing  the 
general  afiidavit  of  prejudice  or  local  influence,  the  truth  of 
which  can  not  be  contested  or  inquired  into,  "  at  any  time 
before  trial  or  final  hearing  of  the  suit."  This  provision 
occasions  delay,  and  is  often  resorted  to  for  that  purpose. 
But  the  act  of  1867  has  been  expressly  adjudged  by  the 
Supreme  Court  to  be  constitutional,'^^  and  Congress  has  not, 
in  our  judgment,  repealed  or  modified  it.  There  is  no  ex- 
press repeal,  and  it  is  not,  according  to  the  better  view,  re- 
pealed by  implication  by  the  act  of  March  3,  1875,  next  to 
be  noticed.'"^ 

In  passing  for  the  present  from  this  act,  we  direct  attention 
to  Mr.  Justice  Miller's  vindication  of  it.  He  says  :  "  I  do 
not  join  in  the  condemnation  of  the  act  of  1867.  It  does 
not  allow  the  removal  solely  on  the  ground  of  citizenship.  It 
requires  the  requisite  citizenship  to  exist,  and  in  addition 
thereto  requires  the  existence  of  prejudice  or  local  influence 
to  be  shown  by  afiidavit.  In  this  respect  the  policy  of  that 
act  is  not  unlike  that  which  prevails  in  perhaps  all  the  states 
in  regard  to  the  change  of  venue  from  one  county,  or  one 

Case  V.  Douglas  (citizenship  of  plaiutifts  who  are  copartners),  1  Dill. 
C.  C.  299;  Cooke  v.  State  Nat.  Bank  (all  the  defendants  must  unite),  1 
Lansing,  X.  Y.  4-94;  s.  C,  52,  X.  Y.  96  (1873)  ;  Wasliingtou  etc.  K.  B. 
Co.  V.  Alexandria  etc.  K.  E.  Co.,  (act  of  1867  does  not  repeal  act  of 
1866).  19  Gratt.  (Va/).  562  (1870);  Fields  v.  Lamb  (as  to  repeal,  etc.) 
1  rxeady,  430;  Beecher  v.  Gillett  (removal  by  substituted  defendant),! 
Dillon  C.  C.  308;  Johnson  v.  Monell  (time  of  removal— cliange  of  resi- 
dence), 1  Woolw.  390. 

Decisions  concerning  the  affidavit  required  by  this  act,  see  infra,  sec. 
14. 

33  Gaines  v.  Fuentes,  U.  S.  Sup.  Court,  Oct.  term,  1875,  3  Cent.  L.  J. 
371;  s.  c,  2  Otto,  10. 

34 Chicago  &  X.  AV.  Kiulway  Co.  v.  AVhitton's  Adnn-.  13  Wall.  270. 

33  7H/r«,  sec.  8. 


26  REMOVAL    OF    CAUSES. 

judicial  district,  to  another.  Johnson  v.  Monell,  1  Woodw. 
390.  The  object  in  each  case  is  to  secure  an  impartial  tri- 
bunal, and  the  Federal  courts  are  not  courts  for  non-residents 
more  than  for  residents,  and  no  injustice  is  done  to  the  latter 
to  l)e  compelled  there  to  litigate  controversies  which  they 
mav  have  with  citizens  of  other  states."  ^^ 


SECTION  VIII. 

ACT    OF    >LARCH    3,    1875. 

We  now  reach  the  act  of  March  3,  1875  (19  Stats,  at 
Large,  470),  entitled  "  an  act  to  determine  the  jurisdiction 
of  the  Circuit  courts  of  the  United  States,  and  to  regulate 
the  removal  of  causes  from  State  courts,  and  for  other 
purposes." 

The  first  section  of  the  act  relates  to  the  original  jurisdic- 
tion of  the  Circuit  court,  civil  and  criminal,  greatly  enlarg- 
ing the  jurisdiction  in  civil  cases,  and  conferring  a  jurisdic- 
tion concurrent  with  the  courts  of  the  several  states,  using 
for  this  purpose  the  language  of  the  article  of  the  Consti- 
tution (art.  3,  sec.  2),  which  defines  and  limits  the  judicial 
power  of  the  general  government.  Ihe  civil  jurisdiction, 
as  there  conferred,  is  given  in  certain  specified  cases  by 
reason  of  the  subjecf -matter,  irrespective  of  the  citizenship 
of  the  parties,  and  in  other  cases  by  reason  of  citizenship, 
irrespective  of  the  subject-matter.  It  is  material  to  notice 
the  clause  giving  jurisdiction  on  the  ground  of  citizenship. 
It  removes  the  limitation  prescribed  hy  the  Judiciary  Act 
and  by  the  prior  removal  acts,  requiring  one  of  the  parties 
to  the  suit,  that  is,  either  the  plaintilfs  or  the  defendants,  to 
be  citizens  of  the  state  where  the  suit  is  brought.  On  the 
contrary,  the  act  of  March  3,  1875,  confers  jurisdiction  of 
all  suits  of  a  civil  nature,  over  $500,  in  which  there  shall  be 
a   controversy  between  citizens   of  difierent  states,  without 

36Fanuers"  etc.  Trust  Co.  v.  Maciuilhm.  8  Dillon.  379,  381. 


REMOVAL    or    CAUSES.  27 

requiring  11113^  of  the  parties  to  be  citizens  of  the  state  in 
which  the  suit  is  brought.  The  second  section  of  the  act 
relates  to  removals  [note  to  sec  2,  aw^e]  ;  and  as  to  the  suits 
which  may  be  removed,  it  follows  the  language  of  the  first 
section.  So  that  it  is  true,  in  general,  that  any  cause  may, 
at  the  proper  time  and  in  the  prescribed  mode,  be  removed 
from  the  State  court  to  the  Circuit  coui-t  of  the  United 
States,  which,  by  reason  of  either  its  sul)ject-matter  or 
the  citizenship  of  the  parties,  might  have  Ijeen  instituted 
originally  in  the  Federal  court. 

The  act  of  1875  on  the  one  hand  adds  to  or  enlarges  the 
classes  of  casfes  that  may  be  removed,  and  on  the  other  hand 
restricts  the  time  in  which  the  removal  must  be  applied  for 
within  narrower  limits  than  the  acts  ofl86()  and  18(57.  The 
required  amount  or  value  is  the  same  as  before,  i.  e.,  it  must 
exceed  $500,  exclusive  of  costs.  In  all  previous  legislation, 
the  right  of  removal,  where  citizenship  is  the  ground,  is  lim- 
ited to  the  non-resident  citizen,  whereas  in  the  act  of  1875  it 
is  given  to  "  either  party ,''  and  in  certain  circumstances  to 
either  one  or  more  of  the  plaintiffs  or  defendants.  This  is 
a  radical  change  of  policy. 

An  analysis  of  the  second  section  of  the  act  shows  that  in 
respect  oi  subject-matter,  without  reference  to  citizenship,  it 
gives  the  right  of  removal  of  ' '  any  suit  of  a  civil  nature  at 
law  or  in  equity,"  involvhig  over  $500,  (1)  arising  under  the 
Constitution,  or  laws  or  treaties  of  the  United  States  ;  or  (:^) 
in  which  the  United  States  shall  be  plaintiff  or  petitioner. 
And  in  respect  of  citizenship,  without  regard  to  subject-mat- 
ter, it  gives  the  right  of  removal  (1)  in  any  suit  "  in  ivhich 
there  shall  he  a  controversy  between  citizens  of  (liferent  states; 
or  (2)  a  controversy  between  citizens  of  the  same  state  claim- 
ing lands  nnder  grants  of  different  states  ;  or  (3)  a  contro- 
versy between  citizens  of  a  state  and  foreign  states,  citizens, 
or  subjects." 

In  respect  of  the  time  in  which  the  removal  must  be  ap- 
plied for,  the  provision  is  that  the  petition  therefor  must 
be  filed  in  the  State  court  "  before  or  at  the  term  at  which  the 


28  REMOVAL    OF    CAUSES. 

cause  could  be  first  tried,  and  before  the  trial  thereof." 
The  decisions  under  the  acts  of  18()G  and  1867  as  to  re- 
movals after  one  trial  had  and  a  new  trial  granted,  which 
Avill  be  aUuded  to  hereafter,  may  not  be  and  probably  are 
not  applicable  under  the  act  of  1875. •" 

Many  questions  oif  great  importance  arise  under  this  act, 
among  which  we  may  mention  in  this  place  the  question  how 
fiir  it  repeals,  if  at  all,  the  12th  section  of  the  Judiciary  Act, 
the  act  of  18(>(>  and  the  act  of  18G7,  or  rather  these  several 
acts  as  sul)stantially  embodied  in  the  6o9th  section  of  the 
Revised  Statutes.  There  is  no  express  repeal  in  the  act  of 
1875  (see  section  10),  of  any  specitied  previous  acts,  the  re- 
peal being  only  of  "  all  acts  and  parts  of  acts  in  conflict 
with  the  provisions  of  this  act."  It  would  seem  that  sub 
division  one  of  sec.  630,  Kevised  Statutes,  (12lh  section  of 
the  Judiciary  Act),  is  practicalh'  repealed  by  reason  of  be- 
ing merged  in  the  more  enlarged  right  given  by  the  act  of 
1875.  If,  however,  a  case  should  arise  which  could  be  re- 
moved under  this  provision,  but  which  could  not  be  removed 
under  the  act'of  1875,  the  former  would  be  held  to  be  still 
subsisting.  If  a  liberal  construction  shall  be,  and  can  con- 
stitutionally be,  given  to  the  latter  portion  of  section  2  of 
the  act  of  1875,  the  above  remark  as  to  repeal  may  possi- 
bly apply,  except  as  to  time,  to  sub-division  second  of  sec- 
tion 639  of  the  Revised  Statutes,  corresponding  to  the  act 
of  1866.  But  the  better  view,  probably,  is  that  the  act  of 
1866  is  not  repealed  by  the  act  of  1875  ;  that  is  to  say,  if  a 
case  is  brought  within  its  provisions,  it  may  still  be  removed 
thereunder,  and  cases  may  arise  of  such  a  nature,  that  they 
would  fall  within  the  act  of  1866,  and  not  M'ithin  that  of 
1875  ;  in  which  event  the  latter  act  should  not  be  held  to 
repeal  by  implication  the  former.  The  third  sub-division  of 
that  section  (corresponding  to  the  act  of  1867)  is  broader 
than  the  act  of  1875,  provides  for  a  class  of  cases  not  pro- 
vided for  by  that  act,  and  while  the  point  is   not  free  of 

3"  See  «■»/»•«.  see.  13,  as  to  tinif  of  apijlying-  for  the  removal  under  the 
act  of  1S75;  infra,  see.  14,  as  to  mode  of  eflectins'  the  removal. 


REMOVAL    OF    CxVUSES.  29 

doubt,  the  true  view  seems  to  be  that  at  all  events  this 
portion  of  the  639th  section  remanis  unrepealed.  This  has 
been  decided  to  be  so  in  the  8th  circuit  by  Mr,  Justice  Mil- 
ler, and  generall}^  in  the  courts  of  that  circuit,  and  so  far  as 
we  are  advised,  by  the  Circuit  courts  elsewhere. 

Concerning  the  nature  of  the  suits  that  maj^  be  removed 
under  the  act  of  1875,  perhaps  the  true  view  is,  that  it  con- 
templates the  removal  of  the  whole  suit,  and  not,  like  the 
act  of  1866,  of  part  of  a  suit.  This  has  been  thus  held  in 
the  7th  circuit. ^^  If,  therefore,  the  main  and  essential  con- 
troversy is  between  citizens  of  the  same  state,  a  non-resident 
defendant  interested  in  a  collateral  branch  of  the  case  can 
not  remove  it  under  the  act  of  March  3,  1875.^^ 

One  of  the  most  important  questions  which  arises  under 
the  act  of  1875  is,  whether  the  Federal  judicial  power  as 
conferred  and  limited  by  the  Constitution  can,  by  reason  of 
citizens] iip,  extend  to  a  case  in  which  some  of  the  necessary 
defendants  are  citizens  of  the  same  state  with  the  plaintitls 
or  some  of  the  plaintitls.  Expressions  may,  perhaps,  be 
found  in  opinions  of  the  Supreme  Court  construing  the  11th 
and  12th  sections  of  the  Judiciary  Act  and  the  removal  acts 
of  1866  and  1867,  which  deny,  or  would  seem  to  deny,  that 
under  the  Constitution  the  Federal  judicial  power  extends 
on  the  ground  of  citizenship  to  cases  where  any  of  the  de- 
fendants in  interest  are  citizens  of  the  same  state  with  the 
plaintiffs,  although  some   of  the  defendants  may  l)e  citizens 

3S  Chicago  V.Gage  (Blodgett,. J.).  8  Chicago  Legal  Xews,  49  (IS75)  :  s.  C, 
6  Bissell,  467;  Osgood  v.  Chicago  etc.  R.  R.  Co.  (Drummond.  J.),  7  Ch. 
Legal  Xew.«.  241 ;  s.  C,  6  Bissell.  330.  In  Elleniian  v.  Xew  Orleans  etc. 
R.  R.  Co.,  2  Woods,  C.  C.  120  (1875),  Mr.  Circuit  Judge  Woods  held 
that,  under  the  act  of  1875,  there  maj'he  a  removal  of  that  part  of  a  cause 
which  concerns  the  original  parties,  notwithstanding  a  statute  of  the  state 
may  declare  that  the  trial  as  to  certain  other  parties  can  not  be  separated 
from  the  trial  of  the  main  cause,— leaving  the  latter  issue  in  the  State 
court.  But  the  point  did  not  require  much  consideration,  for  the  reason 
that  the  latter  parties  had  disclaimed  and  had  no  such  interest  in  the  suit 
or  relative  to  it,  as  to  defeat  the  right  of  removal. 

•39 Chicago  V.  Gage  (Blodgett,  J.).  8  Chicago  Legal  News,  49.  (1875)  ; 
S.  C,  6  Bissell,  467. 


30  REMOVAL    or    CAUSES. 

of  other  states  than  the  one  of  Avliich  the  plaintitf  is  a  citi- 
zen. But  all  the  legislation  previous  to  the  act  of  1875  waa 
such,  that  the  Supreme  Court  was  not  necessarily  obliged 
to  decide  this  question  ;  and  it  is  in  our  judgment  properly 
to  be  considered  as  still  open.  It  will  be  extremely  embar- 
rassing and  unfortunate,  if  the  Supreme  Court  shall  feel 
constrained  to  assign  such  narrow  limits  to  the  Constitution. 
Looking  at  the  purpose  in  the  grant  of  the  Federal  judicial 
power  in  the  Constitution,  and  the  benefits  which  are  felt 
to  flow  from  the  exercise  of  this  jurisdiction,  and  the  em- 
barrassments which  would  result  from  a  close  and  rigid  con- 
struction of  the  Constitution  in  this  regard,  we  think  the 
Supreme  Court  would  be  justified  in  holding  that  a  case 
does  not  cease  to  be  one  between  citizens  of  different  states, 
because  one  or  some  of  the  defendants  are  citizens  of  the 
same  state  with  the  plaintiffs  or  some  of  the  plaintiffs,  pro- 
\aded  the  other  defendants  are  citizens  of  another  or  other 
states.  If  the  substantial  controversy  is  wholly  betw^een 
citizens  of  the  same  state,  it  is  not,  and  can  not  become, 
one  of  Federal  cognizance  ;  but  if  the  real  litigation  is  be- 
tween citizens  of  different  states,  the  case  is  within  the  con- 
stitutional grant  of  Federal  judicial  power,  not^dthstanding 
some  of  the  adversary  parties  may  happen  to  Ije  citizens  of 
the  same  state  with  some  of  the  plaintiffs. 

The  case  of  Lockhart  v.  Horn,  1  Woods,  C.  C.  K.  628, 
634  (1871),  arising  under  a  former  act,  contains  an  ex- 
pression of  the  opinion  of  Mr.  Justice  Bradley  concerning 
the  constitutional  question  a1)()ve  mentioned.  In  conform- 
ity with  the  accepted  construction  prior  to  that  act  he  held, 
that  the  Circuit  court  has  no  jurisdiction  of  a  cause  in  which 
the  plaintiff  and  part  only  of  the  defendants  w^ere  citizens  of 
the  scune  state,  although  they  answer  without  objecting  to 
the  jurisdiction.  He  says  :  "Were  this  an  original  ques- 
tion, I  should  say  that  the  fact  of  a  common  state  citizen- 
ship existing  between  the  complainants  and  a  part  only  of 
the  defendants,  provided  the  other  defendants  were  citizens 
of  the  proper  state,  would  not  oust  the  court  of  jurisdiction.  . 


REMOVAL    or    CAUSES.  31 

It  certainly  would  not  under  the  Constitution.  The  case 
would  still  be  a  controversy  beticeen  citizens  of  different 
states.'^  [The  act  of  1.S75  uses  the  hinguage  of  the  Consti- 
tution, it  will  be  remembered.]  ''•  But  the  strict  construc- 
tion put  by  the  courts  upon  the  Judiciary  Act,"  he  contin- 
ues,   "  is    conclusive    against   the   jurisdiction  ;    and   I  am 

^See,  on  this  subject,  case  of  Sewing  Machine  Cos.,  18  Wall.  553,  af- 
flnning  s.  c,  110  Mass.  70,  80;  Xew  Orleans  v.  Winter,  1  ^Vlieat,  91 
(1816)  ;  Woods  v.  Davis,  18  How.  467;  Hepburn  v.  Ellzey,-2  Cranch,445; 
Strawbridge  v.  Curtiss,  3  Crancli,  267. 

In  the  case  of  Bryant  v.  Eich,  106  Mass.  192,  (s.  c.  in  U.  S.  Sup.  Court, 
under  name  of  Vannevar  v.  Bryant,  21  AYall.  41),  Chief  -Justice  Gray  says 
arguendo  :  ''  Five  of  the  nine  defendants  in  this  case,  as  well  as  the  plaint- 
iff, are  citizens  of  this  commonwealth;  and  the  courts  of  the  United 
States  are  not  authorized  by  the  Constitution  to  take  jurisdiction,  so  far  as 
it  depends  upon  the  citizenship  of  the  parties,  of  suits  between  citizens 
of  the  same  state,  but  only  of  suits  between  citizens  of  different 
states,  or  between  a  citizen  and  an  alien,  and  can  therefore  have 
no  jurisdiction  (except  when  it  grows  out  of  the  subject-matter)  of 
an  action  in  which  any  of  the  plaintiffs  and  of  the  defendants,  who  are 
real  parties  in  interest,  by  or  against  whom  relief  is  sought,  are  citizens 
of  the  same  state.  Const,  of  U.  S.,  art.  3,  §  2;  Strawbridge  v.  Curtiss,  3 
Cranch,  267:  Xew  Orleans  v.  Winter,  1  Wheat.  91;  Wood  v.  Davis,  18 
How.  467;  Tuckerman  v.  Bigelow.  21  Law  Reporter,  208;  Wilson  v. 
Blodgett,  4  McLean,  363. •" 

An  examination  of  the  cases  here  cited  will  show  that  they  turn  upon 
the  language  of  the  Judiciary  Act,  and  not  on  the  Constitution.  So,  in 
the  very  recent  case  of  Ober  v.  Gallagher,  (U.  S.  Sup.  Court,  Oct.  Term, 
1876),  Chief  Justice  Waite  says,  arguendo,  that  if  "  an  indispensable  party 
was  a  citizen  of  the  same  state  loith  the. plaintiff ,  the  jurisdiction  would  be 
defeated,  because  the  controversj^  would  not  be  between  citizens  of  dif- 
ferent states,  and  thus  not  ivithin  the  judicial  poioer  of  the  United  States,  as 
dejinedby  the  Constitution.  The  decisions  to  this  effect  are  numerous: 
Hagan  v.  Walker,  14  How.  36 ;  Shields  v.  Barrow,  17  How'.  141 ;  Clear- 
water V.  Meredith,  21  How.  492 ;  Insbueh  v.  Farwell.  1  Blatchf.  571 ; 
Barnes  v.  Baltimore  City,  6  Wall.  2S6;  Jones  v.  Andrews,  10  Wall.  332; 
Commercial  and  R.  E.  Bank  of  Vioksburg  v.  Sloconib.  14  Pet.  65.  In 
Louisville  E^E.  Co.  v.  Letson,  2  How.  497,  it  is  also  distinctlj^  stated  (p. 
556) ,  that  tbe  act  of  1839  was  passed  exclusively  with  an  intent  to  rid  the 
courts  of  the  decision  in  the  case  of  Strawbridge  v.  Cm-tiss,  3  Cranch, 
267,  which,  with  that  of  the  Bank  v.  Deveaux,  5  Cranch,  84,  had  '  never 
been  satisfactory  to  the  bar."  "'  But  the  cases  here  cited  did  not  necessarily 
involve  an  inquiry  or  decision  as  to  the  extent  of  the  constitutional  point 
of  judicial  power  as  respects  controversies  between  citizens  <f  different- 
states. 


32  REMOVAL    OF    CAUSES. 

bound  by  it.  Nevertheless,  the  case  is  such  that  the  com- 
plainant may  dismiss  his  l)ill  as  to  the"ol)noxious  defendants 
and  hold  it  as  to  the  others.  I  will  permit  him  to  do  so. 
This  should  be  allowed  in  all  cases  where  the  objection  is 
not  made  in  limine.'''' 

The  judicial  power  of  the  United  States,  as  conferred  by 
the  Constitution,  extends  "  to  all  cases  arising  under  the 
Constitution  and  Laivs  of  Ihe  United  ^'^tates,'"  whether  they 
are  pending  in  the  State  or  Federal  tribunals.  The  act  of 
March  3,  1875,  both  in  prescribing  the  original  jurisdiction 
of  the  Circuit  courts  of  the  United  States,  and  in  describing 
the  class  of  cases  which  may  be  removed  into  the  Circuit 
courts  from  the  State  courts,  follows  the  language  of  the 
Constitution.  It  is  therefore  important  to  know,  tvhai 
is  a  case  arising  under  the  Constitution  or  Laws  of  the  United 
States.  The  question  has  been  frequently  l^efore  the  Su- 
preme Court  of  the  United  States,  and  some  of  the  leading 
judgments  are  cited  in  the  note.^^  "  A  case  in  law  or  equity 
consists  of  the  right  of  the  one  party,  as  well  as  the  other, 
and  may  be  truly  said  to  arise  under  the  Constitution  or  a 
law  of  the  United  States,  whenever  its  correct  decision  de- 
pends upon  a  right  construction  of  either."*-  "  Nor  is  it," 
says  Mr.  Justice  Swayne,  "any  objection,  that  questions 
are  involved  which  are  not  all  of  a  Federal  character.  If 
one  of  the  latter  exist,  if  there  be  a  single  such  ingi-edient 
in  the  mass,  it  is  sufficient.     That  element  is  decisive  upon 

*!  Martin  v.  Hunter's  Lessees,  1  ^Vlieat.  314;  Cohens  v.  Virginia,  6 
Wlieat.  264;  Osborn  v.  Bank  of  U.  S..  !)  Wlieat.  821;  United  States  v. 
Peters,  5  Cranch,  115;  Ableman  v.  Booth.  21  How.  506;  Meserole  v. 
Union  Paper  Collar  Co.,  6  Blatchf.  356;  Freeman  v.  Howe ,[24  How.  4.50; 
Mui-dock  V.  Memphis  (full  discussion),  20  Wall.  591;  The  3Iayor  v. 
Cooper,  6  Wall.  247;  Murray  v.  Patrie,  5  Blatchf.  343:  Claflin  v.  House- 
man (U.  S.  Sup.  Court.  Oct.  Term,  1876).  9  Ch.  Legal  Xews.  105;  S.  C, 
3  Cent.  L.  .J.  803 ;  X.  Y.  Life  Ins.  Co.  v.  Hendren  (U.  S.  Sup.  Coiu-t, 
Oct.  Term,  1875) .  8  Ch.  Legal  Xews,  385 ;  Ames  v.  Colorado  Central  R.  K. 
Co..  0  Ch.  Legal  Xews,  132;  s.  c.  3  Cent.  L.  J.  815.  See  ante.,  sec.  2  and 
not*,  and  cases  cited  under  the  acts  of  1833  and  .Inly  27, 1868  (Eev.  Stats., 
sec.  040). 

*2Per  Marshall,  C.  J.,  in  Cohens  v.  Virginia,  G  Wheat.  379. 


REaiOVAL    OF    CAUSES.  33 

the  subject  of  jurisdiction,"*^  Avhether  it   exists   in  favor  of 
the  phiintiff  or  the  defendant. 

But  there  must  be  some  question  actually  involved  in  the 
case,  depending  for  its  determination  upon  the  correct  con- 
struction of  the  Constitution,  or  some  law  of  Cono-ress,  or 
some  treaty  of  the  United  States,  in  order  to  sustain  the 
Federal  jurisdiction  under  the  clause  under  consideration, 
namely,  "  suits  arising  under  the  Constitution,  or  laws  or 
treaties  of  the  United  States."  Accordingly,  a  case  relat- 
ing to  the  title  to  land  is  not  one  of  Federal  jurisdiction, 
although  the  title  may  be  originally  derived  under  an  act  of 
Congress,  if  no  question  arises,  or  is  raised,  as  to  the  valid- 
ity or  operative  eti'ect  of  the  act  of  Congress,  and  the  rights 
of  the  parties  depend  upon  State  statutes  or  the  general 
principles  of  law.^ 

-•^^  The  Mayor  V  Cooper,  6  Wall.  252;  Connor  v.  Scott  (West.  Dist. 
Ark,,  Parker,  J.)   3  Cent.  L,  J,  305, 

Wlien  a  case  involves  the  construction  of  the  bankrupt  act.  it  may  be 
removed  to  the  Federal  court,  under  the  act  of  March  3,  1875,  Con- 
nor v.  Scott  (West.  Dist.  Ark,,  Parker,  J,),  3  Cent,  L,  .J,  305  (1876); 
Payson  v.  Dietz  (removal  by  assignee  in  banki-uptcy,  on  ground  of  citi- 
zenship), 5  Ch,  Legal  Xews,  434;  Trafton  v,  Xougues  (as  to  removal  of 
suits  in  relation  to  mining  claims),  13  Pacific  Law  Eep,  49;  s.  C,  4  Cent. 
L.  J.  228.  cited  infra. 

**McStay  v,  Friedman,  92  U,  S,  E.  (2  Otto),  723;  Eomie  v.  Casanova, 
91  U.  S.  E,  (1  Otto),  380;  Trafton  v,  Xongues  (Dist,  Cal.,  SaAAyer,  Cir- 
cuit Judge),  13  Pacific  Law  Eep.  49  (1877)  ;  s,  c.  4  Cent,  L.  J.  228,  The 
learned  Circuit  Judge,  in  the  case  last  cited,  upon  a  review  of  certain 
decisions  of  the  Supreme  Court  of  the  United  States,  arrives  at  the  fol- 
lowing conclusions:  1,  Only  suits  involving  rights  depending  upon  a  dis- 
puted construction  of  the  Constitution  and  Laws  of  the  United  States 
can  be  transferred  from  the  State  to  the  National  courts,  under  the  clause 
"  arising  under  the  Constitution  and  Laws  of  the  United  States."'  of 
section  2  of  the  Act  to  detei-mine  the  jurisdiction  of  the  United  States 
courts,  passed  March  3d,  1875,  2,  Where  the  only  questions  to  be  liti- 
gated in  suits  to  determine  the  right  to  mining  claims  are,  as  to 
what  are  the  local  laws,  rules,  regulations  and  customs  by  whicli  the 
rights  of  the  parties  are  governed,  and  whether  the  parties  have  in  fact 
conformed  to  such  local  laws  and  customs,  the  courts  of  the  Laiited 
States  have  no  jurisdiction  of  the  cases  imder  the  provisions  of  the  Act 
giving  jurisdiction  in  suits  "  arising  under  the  Constitution  and  Laws  of 
the  LTnited  States. ' 
3 


34  REMOVAL    OF    CAUSES. 


SECTION  IX. 


NATURE  OF  SUITS  THAT  MAY  BE  REMOVED  UNDER  THE  SEV 
ERAL  REMOVAL  ACTS— PRACTICE  AS  TO  REPLEADER. 

^ye  are  prepared  after  this  general  survey  of  the  subject 
to  consider  in  detail  other  important  topics  belonging  to  it. 

As  to  nature  of  suits  that  may  he  removed  under  the  acts 
ive  have  been  reviewing.  The  language  of  section  639  of 
the  Revised  Statutes  is  "  any  suit     *      *      *      wherein  the 

Bequisites  of  petitions  to  transfer  causes  from  State  to  Federal  court 
under  the  above  clause  of  section  3  of  the  act  of  March  3, 1S75,  seepost, 
sec.  14. 

Two  new  and  interesting  points  under  the  act  of  1875  were  ruled  hy 
Mr.  Justice  Davis  and  Judge  Treat  at  the  July  Term,  1S7C.  of  the  Circuit 
Court  of  the  U.  S.,  for  the  Southern  District  of  Illinois.  Mr.  Robert  E. 
Williams,  of  Bloomington,  Illinois,  of  counsel  in  tlie  causes,  has  thus 
stated  the  facts  and  substance  of  the  decisions : 

Turner  Bros.,  citizens  of  New  York,  filed  a  bill  against  the  Indianapo- 
lis, Bloomington  &  Western  R.  R.  Co.,  the  Farmers'  Loan  and  Trust 
Co.  et  ah,  in  the  State  court,  and  a  receiver  was  appointed.    There  were 
three  mortgages  on  the  road — in  the  first  two,  the  Farmers'  Loan 
and  Trust  Co.  is  trustee— in  the  other,  an  individual  is  trustee.     Turner 
Bros,  claimed  to  be  bondholders  of  bonds  under  each  of  the  mortgages, 
and  also  to  be  floating  or  unsecured  creditors  to  a  large  amount.     The 
receiver,  it  was  claimed,  was  ai)pointed  by  collusion  between  the  parties. 
As  soon  as  the  Farmers"  Loan  and  Trust  Co.  learned  of  the  appointment 
of  the  receiver,  it  appeared  in  the  State  court,  answered  the  biU,  and  filed 
a  cross-bill  to  foreclose  the  two  mortgages,  and  then  filed  a  petition  and 
bond  to  remove  the  case  to  the  Federal  court  under  the  act  of  1875. 
Turner  Bros.,  the  complainants  in  the  bill,  are  citizens  of  New  York,  and 
the  F.  L.  &  T.  Co.  is  a  citizen  of  New  York;  but  Turner  Bros,  were 
not.  it  was  claimed,  necessary  parties  to  the  litigation.    A  motion  was 
made  to  remand  to  the  State  covu-t  for  want  of  jurisdiction  in  the  Fed- 
eral court,  as  Turner  Bros,  nnd  the  F.  L.  &  T.  Co .  were  all  citizens  of 
New  York.     After  full  argument  and  consideration.  Mr.  Justice  Da%is 
announced  the  opinion  both  of  himself  and  Judge  Treat,  in  which  he 
said  that  there  Avas  not  a  doubt  that  the  case  was  properly  transferred, 
and  that  the  Federal  court  had  jurisdiction .    In  substance  he  remarked . 
They,  Turner  Bros.,  sued  in  a  double  aspect,  as  bondholders  and  unse- 
cured creditors.     As  bondholders  their  bill  did  not  in  any  Avay  charge  on 
the  trustee  in  either  of  tlie  mortgages  an  inability  or  unwillingness  to 
act.  and  all  of  the  trustees  were  in  fact  parties  and  tr3ing  to  enforce  the 
trust;  therefore,  as  bond  creditors,  they,  TurnerBros.,  were  not  necessary 


REMOVAL    OF    CAUSES.  35 

amount  ill  dispute,  *  *  exceeds  the  sum  or  value  of  five 
hundred  doUars."  The  hmguage  of  the  act  of  1875  (sec.  2) 
is  "  any  suit  of  a  civil  nature  at  hiw  or  in  equity."  Al- 
though the  language  is  ditierent,  the  meaning  is  doubtless  the 
same.  It  does  not  extend  to  crhninal  prosecutions,  being- 
parties.  As  floating-delbt  creditors  tliere  was  no  controversy  bet^\'een  the 
S'urner  Bros,  and  tlie  trustee  in  tlie  mortgages — as,  of  course,  tlie  mort- 
gage took  precedence  of  the  floating  debts;  tliat  as  to  tlie  floating  debts 
the  only  controversy  was  between  the  creditors  and  the  debtor,  the  Rail- 
road Co. ;  that,  therefore,  the  principal  controversy  was  between  the  trust- 
ees in  the  mortgages  (the  F.  L.  &  T.  Co.)  and  the  corporation,  and  that 
the  claim  of  Turner  Bros,  for  their  unsecured  debt  was  improperly  intro- 
duced into  the  case,  and  could  not  oust  the  Federal  court  of  its  rightful 
jurisdiction  over  the  main  controversy  between  the  mortgagor  and  the 
mortgagees ;  but  even  if  Turner  Bros,  as  unsecured  creditors  had  a  right 
to  be  parties  at  all,  their  right  was  only  to  the  surplus  after  payment  of 
all  mortgages,  and  their  controversy  was  merely  an  incident  to  tlie  main 
controversj^  about  the  mortgages,  and  that  the  intention  of  Congress, 
as  plainly  expressed  in  the  act  of  March  3,  1875,  was  that,  wliere  the 
main  controversy  in  a  case  was  between  citizens  of  different  states,  it 
was  removable  and' carried  with  it  all  the  incidents,  and  that  a  mere  inci- 
dent would  not  prevent  the  case  from  being  removed. 

The  other  case  was  this :  A  road  in  the  southern  part  of  the  state  had 
made  a  mortgage  to  the  Farmers' Loan  &  Trust  Co.  A  judgment  creditor, 
by  collusion  with  the  Raih-oad  Co.,  flled  a  bill  and  got  a  receiver  appointed 
by  the  State  court.'making  no  defendant  to  the  bill  but  the  Railroad  Co.  It 
was  claimed  that  this  was  done  with  the  intent  to  obtain  an  undue  ad- 
vantage over  the  bondholders.  As  soon  as  the  F.  L.  &  T.  Co.  learned  of  it, 
it  applied  to  the  State  court  to  be  permitted  to  become  a  party  defendant. 
It  presented  a  sworn  petition  setting  up  its  rights  as  trustee,  and  asking 
leave  to  be  made  a  defendant,  and  with  it  filed  an  answer  to  the  bill  and 
a  cross-bill  to  foreclose  the  mortgage.  The  State  court  refused  to  admit 
the  F.  L.  &  T.  Co.  as  a  defendant,  saying  it  conld  not  make  such  an  or- 
der in  A^acation.  The  F.  L.  &  T.  Co.  at  once  filed  in  the  State  court  its 
papers — that  is,  its  petition,  answer  and  cross-bill,  and  a  petition  and 
bond  to  remove  the  ease  to  the  Federal  court,  and  brought  the  record  to 
the  Federal  court.  There  was  no  question  about  the  citizensliip  of  the 
parties;  but  the  question  was,  as  the  F.  L.  &  T.  Co.  was  not  made  a  de- 
fendant by  the  bill,  and  the  State  court  had  refused  to  make  an  order 
admitting  it  as  a  party,  was  it,  the  F.  L.  &  T.  Co.,  such  a  paity  within  the 
meaning  of  the  act  of  Congress  as  could  file  the  petition  and  bond  for 
removal?  The  F.  L.  &  T.  Co.  contended  that  it  was,  as  it  was  absolutely 
a  necessary  party  to  the  litigation,  and  had  done  all  it  could  to  become  a 
party ;  and  if  the  State  court  could  refuse  to  admit  it  as  a  pai-ty,  it  could 
nullify  the  act  of  Congress  and  leave  the  mortgagee  witliout  remedy. 


36  REMOVAL    OF    CAUSES. 

limited  to  suits  of  a  civil  nature. ^-^  All  eases  which  fall 
within  the  ordinary  notion  of  an  action  at  law  on  contract 
or  for  tort,  or  of  a  suit  in  equity,  are  undoubtedly  em- 
braced by  the  language.  Speaking  of  the  nature  of  suits 
which  may  be  removed  under  the  I2th  section  of  the  Ju- 
diciary Act  (Revised  Statutes,  §  639,  sub-division  1),  Mr. 
Chief  Justice  Chase  in  ^yest  v.  Aurora,*^  said:  "  A  suit 
removaljle  from  a  State  court  must  be  a  suit  regularly  com- 
menced b}^  a  citizen  of  the  state  in  which  the  suit  is 
brought,  by  process  served  upon  the  defendant  who  is  a  cit- 
izen of  another  state,  and  who,  if  he  does  not  elect  to  re- 
move, is  bound  to  submit  to  the  jurisdiction  of  the  State 
court."  This  language  is,  perhaps,  too  broad  to  be  strictly 
applicable  to  all  cases,  since  suits  have  been  held  remov- 
able, and  properly  so  we  think,  which  were  not  "  regularly 
commenced  "  in  the  State  court  on  process  issued  from  it.^" 

Mr.  JustioeT)avis  decided  that  it  was  an  absolutely  necessary  party,  and 
that,  as  it  had  done  all  it  could  to  become  a  party  and  had  been  wrong- 
fully refused  the  right  by  the  State  court,  it  was  a  party  for  the  purpose 
of  removing  the  case,  and  that  the  case  was  rightfully  removed. 

«See  Eison  v.  Cribbs.  1  Dillon.  181,  1S4;  Green  v.  United  States.  0 
Wall.  655. 

*3fi  Wall.  139; (1867). 

47  Patterson  v.  Boom  Co..  3  Dillon,  465.  In  the  case  last  cited  it  was 
held  that  a  suit  pending  in  a  State  court,  between  a  land  owner  and  an 
incorporated  company  seeking  to  appropriate  his  private  propei-ty  under 
the  right  of  eminent  domain,  where  the  question  to  be  tried  is  the  value 
of  such  land,  is  a  suit  of  such  a  nature  as  may  he  removed  to  the  Federal 
court,  although  the  proceeding  in  its  inception  Avas  an  appraisement  by 
commissioners  appointed  under  the  charter  of  the  company. 

What  is  an  original  suit  which  may  be  i-emoved.  and  what  is  a  mere 
supplement  or  sequence  of  a  former  suit  and  decree  in  the  State  court, 
is  illustrated  by  the  case  of  Hatch  v.  Preston.  1  Biss.  19  (1853),  Drum- 
mond.  J.     See  West  v.  Aurora,  supra. 

Plaintift"  sued  at  law  in  the  State  court  on  a  policy,  and  while  it  was 
pending,  filed  a  bill  in  equity  to  reform  it.  Held,  that  the  defendant 
might  remove  the  equity  suit — that  being  an  original  suit  within  the 
meaning  of  sec.  12  of  the  .Judiciary  Act,  and  not  simply  a  suit  ancillary 
to  or  in  aid  of  the  suit  at  law.  Charter  Oak  lire  Ins.  Co.  v.  Star  Ins. 
Co.,  (Nelson,  J.),  6  Blatchf.  208  (1868). 

A  (jarnishee  or  trustee,  holding  property  or  credits  of  the  pi-incipal  de- 
fendant and  joined  as  defendant  for  that  purpose,  w  as  lield  by  the  Su- 


REMOVAL    OF    CAUSES.  37 

The  case  ofWest  v.  Aurora,  supra,  is  iiiterestini;:  as  illus- 
trating a  class  of  questions  which  arise  in  respect  of  removals 
in  consequence  of  the  practice  in  the  code  states  of  min- 
gling, or  rather  uniting  legal  and  equitable  relief  in  the  same 
suit.  In  brief  the  case  was  this  :  The  plaintift*  sued  the  city 
of  Aurora  in  the  State  court  on  coupons.  The  city  made 
certain  defenses,  and  l)y  an  additional  answei-  prayed  an  in- 
junction to  restrain  plaintiff  from  proceeding  in  any  suit  on 
the  coupons,  and  from  transferring  them,  and  for  a  decree 
that  the  same  be  canceled  and  delivered  up.  Upon  the 
tiling  of  this  additional  answer  the  plaintiff  discontinued  his 
suit,  and  assuming  that  he  was  a  defendant  to  the  case  made 
in  the  additional  answer,  and  that  this  was  a  new  suit 
against  him ,  applied  to  remove  the  cause  into  the  Federal 
court,  under  section  12  of  the  Judiciary  Act.  The  Supreme 
Court  held  the  case  not  removable  and  observed:  "The 
tiling  of  the  additional  paragraphs  did  not  make  a  new  suit 
within  the  meaning  of  the  Judiciary  Act.  They  were  in  the 
nature  of  defensive  pleas,  coupled  with  a  pi-ayer  for  injunc- 
tion and  general  relief.  This,  if  allowed  l:»y  the  code  of 
Indiana  (as  it  was),  might  give  them,  in  some  sense,  the 
character  of  an  original  suit,  but  not  such  as  could  be  re- 
' moved  from  the  jurisdiction  of  the  State  court,"  under  the 
Judiciary  Act  which  gives  the  right  "  only  to  a  defendant 
who  promptly  avails  himself  of  it  at  the  time  of  appear- 
ance ;"  but  here  the  plaintiffs  had  "  submitted  themselves, 
b}^  voluntarily  resorting  to  the  State  court,  to  its  jurisdic- 
tion in  its  whole  extent."^*  Some  of  the  cases  illustrative 
of  the  nature  of  suits  that  may  be  removed  are  cited  in  a 
note.^^ 

perior  Court  of  Judicature  of  "New  Hampshire  as  not  within  tlie  removal 
act  of  1866.  and  hence  could  not  have  a  transfer  of  the  case  as  to  him- 
eslf,  leaving- the  cause  as  between  the  principal  parties  in  the  State  court. 
Weeks  v.  Billings,  55  X.  H.  371  (1875) . 

^^See  infra,  sec.  13. 

*^  Suits  btj  attachment  may  be  removed.  Barney  v.  Globe  Bank,  5 
Blatchf.  107;  Sayles  v.  I>^.  W.  Ins.  Co.,  2  Curtis  C.  C.  212.  And  eject- 
inont  actions.  Ex  parte  Turner,  3  Wall.  Jr.  258;  Torrey  v.  Beardsley,  4 
Wash.  C.  C.  K.  242:  Allin  v.  Robinson.  1  Dillon.  119;  Ex  parte  Girard, 


38  REMOVAL    or    CAUSES. 

Where  the  case  made  1)}^  the  pleadings  in  the  State  court 
is  m  its  nature  a  law  action,  it  must,  when  removed  to  the 

3  Wall.  Jr.  203  (1868).  Grier..J.  And  in  replevin.  Beecher  v.  Gillett.  1  Dil- 
lon. 308;  Dennistonn  v.  Draper.  5  Blatchf.  336.  And  ubill  in  equity  to 
reform  an  insurance  policy.  Charter  Oak  Co.  v.  Star  Ins.  Co.,  6  Blatchf. 
208.  And  a  special  statutory  jyroceeding  in  the  nature  of  a  chancery  remedy 
to  confirm  a  tax  title.  Parker  v.  Overman,  18  How.  137;  s.  c.  Hemp- 
stead, 692. 

A  proceeding  to  appiropriate  private  property  for  public  use,  which  at 
the  time  the  removal  was  applied  for  had  assumed  the  shape  of  an  ac- 
tion at  law  regularly  docketed  in  the  State  court,  to  be  tried  and  deter- 
mined as  other  cases,  and  judgment  entered  accordingly,  is  such  a  suit 
as  maj'  be  removed.    Patterson  v.  Boom  Co.,  3  Dillon,  465. 

Suit  in  a  State  court  by  strangers,  the  object  of  which  is  to  annul  a  will 
and  to  recall  the  decree  by  which  it  was  allowed  to  probate,  is  in  effect  a 
suit  in  equity,  and  may  be  removed  to  the  Circuit  court  under  the  act  of 
March  2.  1867.  Gaines  v.  Fuentes,  (Oct.  Term,  1875,  U.  S.  Sup.  Court.  3 
Cent.  L.  J.  371;  s.  c.  2  Otto,  10,  overruling  s.  c,  25  La.  An.  85).  dis- 
tinguished from  Broderick's  Will  case,  21  Wall.  503,  and  proceedings  to 
probate  wills.     Fouvergnev.  New  Orleans,  18  How.  470. 

Under  the  legislation  of  Massachusetts  in  respect  to  the  establishment 
of  claims  against  the  estates  of  deceased  persons.,  which  provides  for  the 
examination,  by  Commissioners  of  the  Probate  Court,  of  all  claims  of 
creditors  against  tlie  estate,  and  for  the  allowance  or  rejection  by  the 
Commissioners  of  each  claim,  and  which  requires  a  statement  of  the 
amount  allowed  on  each  claim  and  a  list  of  claims  finally  allowed.  Math 
a  provision  for  an  appeal  by  either  party  to  a  Superior  court,  which  shall 
be  tried  as  in  an  action  at  law  proseci;ted  in  tlie  usual  manner,  except 
that  no  execution  shall  be  awarded,  it  was  held  that  such  a  claim,  pend- 
ing on  appeal  in  the  Superior  court  from  the  decision  of  commis- 
sioners appointed  by  the  Probate  court,  could  not  be  removed  to  the  Cir- 
cuit court  of  the  United  States  under  the  act  of  1867.  Du  Vivier  v. 
Hopkins,  116  Mass.  125  (1874).  This  decision  was  rested  upon  two  gen- 
eral gi-ounds:  1.  The  claim  against  an  estate  is  not  such  a  suit  as  is  con- 
templated by  the  removal  acts  of  Congress ;  the  Supreme  Judicial  Court 
of  Massachusetts  being  of  oi)inion  that  the  jurisdiction  of  the  State 
courts  over  the  entire  proceedings  for  the  settlement  of  the  estate  is  ex- 
clusive of  the  Federal  courts;  [but  see  Craigie  v.  McArthur,  9  Ch.  Legal 
News,  156;  S.  C,  4  Cent.  L.  J.  237;  s.  c,  15  Al.  Law  J.  121 ;  s.  c.  4  Dil- 
lon C.  C. ;  Payne  v.  Hook,  7  Wall.  425;  s.  c,  14  Wall.  252]  ;  that  nothing 
less  than  the  whole  cause  can  be  removed,  while  here  was  an  attempt,  in 
the  opinion  of  the  Court,  to  remove  part  of  the  proceeding;  that  on  the 
removal  of  a  cause,  where  the  right  exists,  the  jurisdiction  of  the  State 
court  ceases  and  the  Federal  court  must  execute  its  own  judgment,  and 
can  not  after  judgment  i-emand  the  cause  for  anj'  piu'pose,  or  transmit  a 
certificate  of  its  judgment  to  the  State  court,  it  not  being  an  appellate 
tribunal,  but  a  court  of  co-ordinate  and  independent  jurisdiction;  and 


REMOVAL    OF    CAUSES.  39 

Federal  court,  proceed  as  suoli,  and  may  do  so  (where  the 
action  is  a  purely  legal  one),  although  it  is  brought  in  the 

here  the  Federal  court  could  not  issue  execution  on  its  judgment  or 
certify  the  same  to  the  State  court.  2.  The  application  could  not  be  made 
in  the  appellate  court,  but  under  the  act  of  Congress  nmst  be  made  in  the 
courtof  original  jurisdiction  before  final  judgment;  and  here  the  decision 
of  the  Commissioners  of  the  Probate  Court  would  be  final,  unless  modified 
by  the  State  appellate  court.  The  view  of  the  Supreme  Judicial  Court  of 
Massachusetts  that  a  claim  against  the  estate  of  a  deceased  person  is  not, 
under  the  statute  of  that  state,  such  a  suit  as  falls  within  the  provision  of  the 
removal  acts  of  Congress,  is  doubtless  correct,  at  least  while  the  proceed- 
ing is  in  the  Probate  court ;  but  on  the  appeal  of  the  creditor  or  executor  the 
statute  provided,  that  the  supposed  ci-editor  shall  file  a  written  statement 
of  his  claim,  in  the  nature  of  a  declaration,  "and  like  proceedings 
sliall  tnereupon  be  had  in  the  pleadings,  trial  and  determination  of  the 
case  as  in  an  action  at  law  prosecuted  in  the  usual  manner,  except  that 
no  execution  shall  be  awarded."  This  would  seem  to  assimilate  the 
case  in  the  appellate  court  to  an  ordinaiy  suit;  but  if  so.  the  difficulty 
was  that  the  application  for  the  removal  was  not  made  before  the  final 
trial  in  the  court  of  original  jurisdiction  as  required  by  the  act.  Further 
as  to  the  Federal  jurisdiction  in  respect  to  suits  concerning  the  settlement 
of  estates  of  deceased  persons,  the  probate  of  Avills,  etc.,  see  Mallett  v. 
Dexter.  1  Curtis  C.  C.  R.  178.  Compare  with  Payne  v.  Hook,  7  Wall. 
425;  Williams  v.  Benedict,  8  How.  107;  Vaughan  v.  Xorthup,  15  Pet.  1; 
Pratt  V.  Northam,  5  Mason  C.  C.  95;  Gaines  v.  Fuentes,  2  Otto.  TO, 
overruling  s.  c,  25  La.  Ann.  So;  Tarver  v.  Tarver.  9  Pet.  174;  Gaines  v. 
Chew,  2  How.  619,  650;  Gaines  v.  Xew  Orleans,  6  Wall.  642;  Gaines  v. 
Hennen,  24  How.  553 ;  Fuentes  v.  Gaines,  1  Woods  C.  C.  112,  where  Mr. 
Justice  Bradley  reviews  previous  cases  of  Mrs.  Gaines  in  the  Supreme 
Court;  Case  of  Broderick's  Will,  21  Wall.  503;  Burts  v.  Loyd,  45  Ga. 
104;  Hargroves  v.  Redd,  43  Ga.  143;  Craigie  v.  McArthur,  9  Ch.  Legal 
News.  156;  s.  C,  4  Cent.  L.  J.  237;  s.  c,  15  Alb.  L.  J.  121. 

A  suit  in  a  State  court,  to  restrain  or  stay  execution  of  a  judgment  of  the 
State  court  by  a  seizure  and  sale  of  the  complainant's  lands,  may  be  re- 
moved, under  the  act  of  1875,  although  such  an  injunction  has  been  al- 
lowed by  the  State  court,  if  the  reciuisites  as  to  citizenship  and  amount 
exist,  notwithstanding  the  Federal  courts  are  prohibited  by  the  Revised 
Statutes  (sec.  720)  from  granting  an  injunction  to  stay  proceedings  in  a 
State  court;  and  the  Federal  court  has  power,  under  the  act  of  March  3, 
1875  (sec.  4),  to  continue,  modify  or  dissolve  the  injunction  allowed  by 
the  State  court.  Watson  v.  Bondurant,  2  Woods  C.  C.  166  (1875), 
Woods.  Circuit  Judge;  s.  C,  3  Cent.  L.  J.  398. 

Right  of  removal,  under  act  of  1875,  of  a  railv-ay  foreclosure  suit  held 
not  afl"ected  by  the  pendency  of  another  suit  in  the  State  court  by  stock- 
holders against  the  company,  in  which  certain  orders  had  been  made  as 
to  a  receiver;  the  right  of  removal  was  sustained.     Scott  et  «?.,  Trustees. 


40  REMOVAL    OF    CAUSES. 

name  of  the  real  party  in  interest  (as  anthorized  by  the 
State  codes),  instead  of  the  person  holding  the  bare  legal 
title. -^o 

AVhere  the  suit  in  the  State  court  is  in  its  nature  a  suit  in 
equity,  it  must  proceed  as  an  equity  cause  on  its  removal 
into  the  Federal  court.  The  pleadings  and  practice  in  law 
actions,  except  where  othen\dse  specially  provided  by  act 

V.  Clinton  &  Springfleld  E.  E.  Co..''(Dnunmond,  J.),  8  Ch.  Legal  Xews 
210;  s.  C,  6Bissell,  529. 

As  to  the  removal  of  torts  by  one  defendant  under  act  of  1866,  qucere  in 
Yannevai-  v.  Bryant,  21  Wall.  41,43;  s.  c.  below,  Brj-ant  v.  Eich,  106 
Mass.  180.  An  action  of  tort  against  several  defendants,  for  a  conspiracrj, 
can  not  be  removed  by  part  of  tliem  under  the  act  of  1866,  the  Com-t  be- 
ing of  opinion  that  there  could  not  be  a  final  determination  of  the 
controversy  without  the  presence  of  all  of  the  defendants.  Ex  parte 
Andrews  and  Mott,  40  Ala.  639  (1867)— Bj'rd,  J.,  dissenting.  The  opin- 
ion discusses  quite  fully  the  construction  of  the  acts  of  1S66  and  1867. 
The  suit  was  brought  in  Alabama  by  citizens  of  the  state  against  a  citi- 
zen of  that  state  and  two  citizens  of  another  state ;  and  it  was  held  that 
the  act  of  1867  did  not  authorize  its  removal  at  the  instance  of  the  non- 
resident defendants,     lb. 

Definition  of  ''suit,"*  "action."'  "case,'"  "cases  inlaw  and  equity." 
see  Story  Com.  on  Const.,  sees.  1645,  1647.  Weston  v.  City  of  Charles- 
ton. 2  Pet.  449;  Holmes  v.  Jennison.  14  Pet.  540;  Ex  jtarte  Milligan,  4 
Wall.  2;  Phillips"  Pr.  (2d  Ed.)  13,  55;  West  v.  Aurora.  6  Wall.  139. 

AVhat  is  a  suit  or  defense  arising  tinder  a  lavj  of  the  United  States, 
Tnrton  v.  Union  Pacific  E.  E.  Co.,  3  Dillon,  366;  Orner  v.  Saunders.  II). 
284;  People  v.  Chicago  &  Alton  E.  E.  Co.,  (construction  of  act  of 
Congress  of  April  20,  1871),  6  Ch.  Legal  Isrews,316;  Osborn  v.  Bank  of 
U.  S.,  9  Wheat.  738.    Other  cases  cited  ante,  sec.  8. 

Acts  of  1866 — Removal  by  part  of  defendants.  The  grantor  in  a  deed  of 
trust  conveying  the  legal  title  in  fee  to  a  trustee  to  secure  the  payment  of 
a  debt  to  a  third  person  can  not  under  the  act  of  1866  remove  a  suit  to 
foreclose  such  deed  of  trust  in  Avhich  he  and  the  said  trustee  are  de- 
fendants, leaving  the  trustee  in  the  State  court ;  and  the  reason  is  that  the 
foreclosure  by  sale  of  land  requires  the  presence  of  the  party  holding 
the  legal  title;  and  since,  under  the  act  of  1866,  the  cause  was  not  re- 
movable as  to  the  trustee,  it  could  not  be  removed  by  the  mortgagor. 
Gardner  v.  Brown.  U.  8.  Sup.  Comt,  Oct.  Term,  1874,  21  Wall.  36;  Coal 
Co.  v.  Blatchford,  11  Wall.  172;  supra.,  sec.  6;  infra,  sec.  13. 

•^'Thompson  v.  Eailroad  Companies,  6  Wall.  134;  Weed  Sewing  3Ia- 
chine  Co.  v.  Wicks  et  aZ.,  3  Dillon,  261:  Bushnell  v.  Kennedy,  9  Wall. 
391 ;  Act  June  1,  1872,  17  Stats,  at  Large.  197,  sec.  5;  Eev.  Stats.,  sec. 
914:  Wood.  V.  Davis.  18  How.  467:  Knapp  v.  Eailroad  Co.,  20  Wall.  117. 
Compare  Suydam  v.  Ewing,  2  Blatchf,  359,  as  to  which  quoire. 


REMOVAL    OF    CAUSES.  41 

of  Congress,  are  to  be  conformed,  as  nearly  as  may  be,  to 
the  pleadings  and  practice  in  the  State  com-t  of  the  particu- 
lar state.  But  in  equity  it  is  otherwise.  The  pleadings  and 
practice  in  equity  causes  in  the  Federal  courts  are  uniform 
throughout  the  United  States,  and  are  governed  hy  the  Equity 
Rules  prescribed  by  the  Supreme  Court  of  the  United  States 
and  by  the  practice  of  the  Court  of  Chancery  in  Great  Brit- 
ain as  it  existed  before  the  recent  changes  in  the  judicial 
system  of  that  country.  The  Federal  courts  have  the  same 
chancery  jurisdiction  in  every  state,  and  equity  causes  must 
be  kept  separate  and  distinct,  from  their  inception  to  the  end, 
from  law  actions,  and  are  to  be  decided  by  principles  of 
equity  of  uniform  and  general  application.'^ 

Where  the  suit  in  the  State  court  unites  legal  and  equita- 
hle  grounds  of  relief  or  of  defense  as  authorized  by  the 
codes,  and  it  is  removed,  as  it  ma}^  be  if  the  causes  for  re- 
moval exist,  what  is  to  be  done  with  it  in  the  Federal  court, 
w^here  law  and  equity  suits  and  issues  must  be  kept  separate 
and  distinct?  In  such  a  case  a  repleader  is  necessary,  and 
the  case  must  be  cast  in  a  legal  mold,  or  in  the  equity  mold, 
or  be  recast  into  two  cases,  one  at  law  and  one  in  equity, 
and  the  Federal  court  is  undoubtedly  competent  to  make  all 
orders  uecessar}^  to  this  end.'^- 

51  Xeves  V.  Scott,  13  How.  268.  See  also  Greeu  v.  Custard,  23  How, 
484,  where  the  reader  ^\ill  fiud,  and  perhaps  be  amused  by,  tlie  Philippic 
of  Mr.  Justice  Grier  against  the  code  system  of  pleadings  and  practice. 
His  remarks  are  unjust  to  that  system  properly  understood,  but  they  are 
too  often  deserved  by  the  loose  practice  which  has  grown  up  under  it. 

52 Sands  v.  Smith,  1  Dillon,  290.  note;  Fisk  v.  Union  Pacitic  E.  E.  Co., 
8  Blatchf.  299;  Partridge  v.  Ins.  Co.  (set-off),  15  Wall.  573. 

The  text  states  the  practice  whic^i  has  been  pursued  in  the  Sth  Circuit ; 
and  the  case  of  Akerly  v.  Vilas,  3  Bissell,  332,  is  not  to  be  understood, 
we  think,  as  authorizing  legal  and  equitable  grounds  of  relief  or  defense 
to  be  tried  in  one  and  the  same  suit  after  the  removal  to  the  Federal 
court,  nor  necessarily  to  confine  the  Federal  comt  to  the  trial  of  the 
issues  as  made  up  on  the  pleadings  in  the  State  court.  The  practice  in 
the  Federal  courts  is  quite  general  to  allow  amendments  after  the  re- 
moval, in  furtherance  of  justice  and  within  the  scope  of  the  original 
cause  of  complaint.  Toucey  v.  Bowen,  1  Bissell.  81  (1855).  Huntington, 
J.;  Suydam  v,  Ewing  (practice  after  removal),  2  Blatchf,  359  (1852), 


42  KEMOVAL    OF    CAUSES. 

Ill  lavj  cases,  pure  and  simple,  no  repleader  in  the  Federal 
courts  is  necessary,  especially  since  the  Practice  Act  of  June 
1,  1<S72.*^  Nor  is  a  repleader  necessary  in  equity  causes 
where  the  complaint  or  petition  in  the  State  court  contains 
the  substance  of  a  bill  in  equity  adapted  to  present  the 
plaintiff" s  case.  But  although  a  repleader  in  such  case  be 
not  indispensable,  it  may  often  be  advisable.  In  cases, 
however,  where  legal  and  equitable  matters  are  united  or 
mingled,  it  is  necessary,  as  above  stated,  to  frame  the 
pleadings  anew  after  the  cause  reaches  the  Federal  court, 

Betts,  J.;  Barclay  v.  Levee  Commissioners,  1  Woods  C.  C,  254;  Dart  v. 
McKinney,  9  Blatchf.  3»9  (1872) . 

53Kev.  Stats,  sec.  914;  Merchants'  etc.  Xat.  Bank  v.  Wheeler  (South. 
Dist.  N.  Y.;  .Johnson,  Circuit  .J.),  3  Cent.  I..  J.  13  (1875)  ;  Dart  v.  Mc- 
Kinney, 9  Blatchf.  359  (1872).  Blatchford,  .J.,  under  act  of  1866.  For- 
merly in  cases  removed  under  the  Judiciary  Act,  and  where  the  pleadings 
in  the  Federal  court  were  different  from  those  in  the  State  courts,  the 
practice  in  some  of  the  courts  was  to  require  the  plaintiff"  after  the  re- 
moval to  file  a  new  declaration^  the  same  as  if  the  suit  had  originally  been 
commenced  in  the  Federal  court.  Martin  v.  Kanouse,  1  Blatchf.  C.  C. 
149;  s.  C,  15  How.  198. 

Under  the  Revised  Statutes,  sec.  639,  the  party  remoAdng  the  cause 
is  required  to  file  in  the  Federal  court  "  copies  of  the  said  process  against 
him  and  of  all  pleadings,  dei)Ositions,  testimony  or  other  proceedings  in 
the  cruise,"  and  "  when  the  said  copies  are  entered  as  aforesaid  in  tlie  Cir- 
cuit court,  the  cause  shall  there  proceed  in  the  same  manner,  as  if  it  had 
been  brought  there  by  original  process,  and  the  copies  of  pleadings  shall 
have  the  same  force  and  elfect,  in  every  respect  and  for  every  purpose,  as 
the  original  pleadings  would  have  had  by  the  laws  and  practice  of  the 
courts  of  such  state,  if  the  cause  had  remained  in  the  State  court."  This 
clearly  dispenses  with  the  necessity  of  new  pleadings  in  the  Federal 
court,  where  the  original  pleadings  are  adai»ted  to  tlie  separate  law  and 
equity  jurisdiction  of  that  court, — the  ob^^ous  purpose  of  this  legislation 
being  that  tlie  Federal  court  shall  take  up  the  cause  where  it  was  when 
it  left  the  State  court,  and  proceed  with  it  as  if  it  had  been  originally 
brought  in  the  Federal  court.  And,  in  substance,  the  same  pro\asions 
are  made  in  the  act  of  March  3,  1875.     See  sees.  3,  4,  6,  7. 

Costs  in  suits  removed  from  the  State  court  held  to  be  governed,  not  by 
the  Eevised  Statutes,  sec.  9G8,  but  by  the  statute  of  the  state;  hence 
where,  in  an  action  of  trespass  on  the  case  removed  from  the  State  court, 
the  plaintift'  recovered  less  tlian  SlOO,  it  was  held  that  under  the  statute 
of  Michigan  (Comp.  Laws,  sec.  7290)  the  defendant  was  entitled  to  costs 
as  a  matter  of  right.  Scupps  v.  Campbell  (East.  Dist.  Mich.,  Brown,  .J), 
3Cent.L.  J.  52l''(1876). 


EEMOYAL    OF    CAUSES.  43 

SO  as  to  make  it  distinctively  one  at  law  or  one  in  cquit}^ 
or  by  a  division  into  two,  the  one  a  law,  the  other  an 
equity  suit.'^* 


SECTION  X. 

FROM    WHAT    COURT    THE    REMOVAL    MAY    BE    MADE RE3IOVAI> 

HOW    ENFORCED CERTIORARI. 

The  language  of  the  Revised  Statutes,  sec.  639,  and  of 
the  act  of  March  3,  1875,  is:  "Any  suit  in  any  State 
court,"  etc.  In  Gaines  v.  Fuentes  the  Supreme  Court  of 
the  United  States  held  that  an  action  in  form  and  purpose 
to  annul  a  will  and  to  recall  the  decree  by  which  it  was  pro 
bated,  brought  in  a  State  court  without  separate  equity 
jurisdiction,  and  which  is  invested  with  jurisdiction  over 
the  estates  of  deceased  persons,  might  be  removed  under 
the  act  ot  1867  to  the  Federal  court.  Speaking  of  the  case 
before  the  court  and  the  act  of  1867,  Mr.  Justice  Field  ob- 
served:  "This  act  covered  every  possible  case  involving- 
controversies  between  citizens  of  the  state  where  the  suit 
was  brought  and  citizens  of  other  states,  if  the  matter  in 
dispute,  exclusive  of  costs,  exceeded  the  sum  of  $500.  It 
mattered  not  whether  the  suit  tvas  brought  in  a  State  court 
of  limited  or  general  jurisdiction.  The  only  test  was,  did 
it  involve  a  controversy  between  citizens  of  the  state  and 
citizens  of  other  states,  and  did  the  amount  in  dispute  ex- 
ceed a  specified  amount?  And  a  controversy  was  involved 
in  the  sense  of  the  statute  whenever  any  property  or  claim 
of  the  parties,  capable  of  pecuniary  estimation,  was  the  sub- 
ject of  litigation,  and  was  presented  by  the  pleadings  for 
judicial  determination . "^^ 

&iSee  Dart  v.  McKinney,  9  Blatchf.  359;  Akorly  v.  Vilas,  2  Bissell.  110; 
Green  V.  Custard,  23^How.  484;  Fisk  v.  Union  Pacific  R.  E.  Co..  S  Blatchf. 
299;  Partridge  v.  Ins.  Co.,  15  Wall.  573;  Sands  v.  Smith,  1  Dillon,  290; 
Thompson  v.  Railroad  Cos..  6  Wall.  134;  Rev.  Stats.,  sees.  639.  914. 

55  Gaines  v.  Fuentes  et  al.,  3  Cent.  L.  J.  371 ;  s.  c,  8  Ch.  Legal  Xews, 
225;  s.  C,  2  Otto,  10.     In  The  Rathhone  Oil  Co.  v.  Ranch.  5  West  Ya. 


44  REMOVAL    OF    CAUSES. 

Under  the  act  of  March  3,  1.S75  (sec.  7),  the  Circuit 
court  ot  the  United  States,  to  which  any  cause  shall  be  re- 
movable, under  its  provisions  has  power  to  issue  a  writ  of 
certiorari  to  the  State  court,  commanding  that  court  to  make 
return  of  the  record  in  the  cause  ;  and  the  clerk  of  the  State 
court  is  suljjected  to  criminal  punishment  who  refuses,  after 
tender  of  fees,  to  the  party  applying  for  the  removal  a  copy 
of  the  record.'^'' 

79  (1S71).  referred  to  infra,  it  was  held  that  no  motion  to  remove  a  cause 
can  l)e  made  before  a  justice  of  the  peace,  tliat  not  being  a  •'  State  court  " 
witliin  tlie  meaning  of  tlie  act  of  Congress, — l)nt  tlie  act  of  Congress  is, 
''  any  State  court,''  wlietlier  of  general  or  limited  jurisdiction. 

^Certiorari — Copies  of  record — Mandaimcs  to  enforce  removal,  etc. — 
The  only  object  of  a  certiorari  is  to  bring  the  record  from  the  State  court 
into  the  Federal  court;  hut  the  writ  is  unnecessary,  when  the  record  of 
the  State  court  is  already  before  the  Federal  court.  Scott  et  al.,  Trustees, 
V.  Clinton  and  Springfield  E.  R.  Co.,  8  Ch.  Legal  Xews,  210,  per  Drum- 
mond,  J.;  s.  C,  6  Bissell,  529. 

The  writ  of  certiorari  is  often  resorted  to  as  the  means  of  effecting, 
pursuant  to  law,  the  removal  of  the  record  of  a  proceeding  or  cause  from 
one  court  to  another.  In  England  and  in  some  of  the  states  in  this 
country  indictments  and  other  proceedings  are  removed  for  trial  from 
the  lower  to  the  higher  court.  Bacon's  Abridg.  title  Certiorari ;  1  Bl. 
Com.  320,  321;  1  Chitty  Cr.  Law,  334,  571  et  seq.,  387;  State  v.  Gibbons, 
1  South.  (N.  J.),  40,  44;  United  States  v.  McKee,  4  Dillon,  C.  C.  (not  yet 
reported)  ;  s.  c,  3  Cent.  L.  J.  292,  on  motion  in  arrest  of  judgment. 

Section  7  of  the  act  of  March  3,  1875.  authorizing  the  Circuit  court  to 
issue  the  writ  of  certiorari,  pro\ides  that  it  shall  "  command  the  State 
court  to  make  return  of  the  record  "'  of  tlie  cause  removed,  which  means 
an  exemplified  copy  of  the  record.  LTnited  States  v.  McKee.  supra.  And 
express  power  is  given  to  the  Circuit  court  '■  to  enforce  the  said  writ  ac- 
cording to  law.'' 

The  provision  in  the  act  of  March  3, 1875,  sec.  7,  in  respect  to  certiorari, 
only  extends  to  "  causes  which  shall  be  removable  under  this  act.''"'  There 
is  no  similar  provision  as  to  cases  removable  luider  sec.  639  of  the  Re- 
vised Statutes;  but  there  is  a  pro\ision  (Rev.  Stats,  sec.  645)  allowing 
<Jopies  of  the  record  in  the  State  court  to  be  supplied  by  affidavit  or  oth- 
erwise, on  pi-oof  that  the  clerk  of  the  State  court,  after  demand  and  pay- 
ment or  tender  of  his  legal  fees,  refuses  or  neglects  to  deliver  certified 
copies  of  the  records  and  proceedings  of  tlie  State  court  in  the  cause.  As 
to  pro\asions  in  special  cases,  see  Revised  Statutes,  sees.  G41,  643;  Bench- 
ley  V.  Gilbert  (suit  held  not  removable  by  certiorari  under  sec.  67.  act  of 
July  13,  1866),  8  Blatchf.  147. 

Certiorari  and  habeas  corpus  under  act  of  1833,  "  force  act,"  in  respect 
to  removal  of  causes.    Abranches  v.  Schell,  4  Blatchf.  256. 


KKJVIOVAL    OF    CAUSKS. 


SECTION  XI. 


A8    TO    VALUE. 


In  the  EEMOVAL  acts  to  which  we  have  referred, 
namely,  the  Eevised  Statutes,  section  639,  and  the  act  of 
March  3,  1875,  it  is  made  an  indispensable  element  of  re- 
movability, that  the  amount  in  disjnite,  exclusive  of  costs, 
shall  "  exceed  the  sum  or  value  of  live  hundred  dollars." 
This  language,  as  well  as  that  which  precedes  it,  is  descrip- 
tive of  the  nature  of  suits  that  may  be  removed.  The  sub- 
ject-matter of  the  dispute  or  of  the  suit  must  be  property, 
or  money,  or  some  right,  the  value  of  which  in  money  is 
susceptible  of  judicial  ascertainment.  The  language  de- 
scriptive of  suits  that  may  he  removed  excludes  criminal 
cases  and  controversies  relating  to  the  custody  of  a  child, 
or  the  right  to  personal  freedom. '^^ 

As  to  order  allowing  copies  of  the  papers,  etc.,  in  the  State  court  to  be 
filed  in  tlie  Federal  court,  where  the  clerk  refuses  to  certify  such  copies : 
Akerly  V.  Vilas,  1  Ahb.  U.  S.  Kep.  284;  s.  c,  2  Bissell,  110  (1869);  24 
Wis.  165;  Hatch  v.  C,  R.  I.  &  P.  R.  E.  Co.,  6  Blatchf.  105. 

Without  express  authority  from  Congress,  the  Federal  court  can  not 
issue  a  writ  of  mandamus  to  the  State  court,  to  require  it  to  proceed  no 
further  in  the  case,  and  to  certify  the  case  to  the  Federal  court.  It  was 
admitted  that  Congress  could  confer  such  a  power,  hut  denied  that  it  had 
done  so  by  the  Judiciary  Act.  Per  Drummond,  J.,  Hough  v.  West. 
Transp.  Co.,  1  Bissell,  425  (1864).  Or  by  the  act  of  July  27,  1866;  In  re 
Cromie,  2  Bissell,  160  (1869) .  Or  by  the  act  of  July  27, 1868  (Rev.  Stats., 
sec.  640)  ;  Fisk  v.  Union  Pacific  B.  R.  Co.,  6  Blatchf.  362  (1869).  See  on 
subject  of  mandamus  and  process  to  enforce  removal  of  cause  from  State 
to  Federal  court,  Spraggins  v.  County  Court,  Cooke's  Rep.  160,  Ex 
parte  Turner,  3  Wall.  Jr.  258,  Crier,  J. 

Proceedings  in  the  State  court  after  the  rem.oval  of  the  cause  vill  not  he 
sfaj/fifZ  by  writ  from  the  Federal  court;  if  the  removal  was  not  kiwfully 
eifected,  such  writ  is  improper;  if  effected,  it  is  unnecessary.  Bell  v. 
Dix,  49  N.  Y.  232  (1872)  ;  Fisk  v.  Union  Pacific  R.  R.  Co.,  6  Blatchf.  362. 
See  further  on  this  point,  ixjst,  sec.  17  and  note. 

57 Phillips'  Pr.  (2d  Ed.),  82;  Lee  v.  Lee,  8  Pet.  44;  Barry  v.  Mcreien, 
5  How.  103;  Pratt  v.  Fitzhugh,  1  Black,  271;  DeKraff't  v.  Barney.  2 
Black,  704;  Sparrow  v.  Strong.  3  Wall.  97;  Gaines  v.  Fuentes,  Sup. 
Court,  Oct.  Term,  1875.  3  Cent.  L.  J.  371;  s.  C,  2  Otto,  10.  The  suits- 
nnist  relate  to  claims  or  property  capable  of  pecuniary  estimation.    Ih. 


46  REMOVAL    OF    CAUSES. 

It  is  not  sufficient  that  the  value  in  dispute  i^recisely  equals 
$500  ;  it  must  exceed  that  sum  or  amount.'^ 
-  The  value  of  the  matter  in  dispute  for  the  purposes  of 
removal  is  to  be  determined  by  reference  to  the  amount 
claimed  in  the  declaration,  petition  or  bill  of  complaint. '^^ 
In  actions  on  a  money  deinand,  the  value  in  dispute  is  the  debt 
and  damages  claimed  as  stated  in  the  petition  or  declaration, 
and  in  the  prayer  for  judgment.  For  example,  if  the  ac- 
tion be  on  a  note  for  a  fixed  sum,  and  the  principal  and  in- 
terest and  damages  do  not  all  together  exceed  $500,  it  is 
not  removable,  although  the  prayer  for  judgment  may  be  for 
an  amount  greater  than  SoOO.  On  the  other  hand,  in  the 
case  supposed,  though  the  plaintiff  might  have  been  enti- 
tled to  a  recovery  for  more  than  $500,  yet  if  the  prayer  for 
judgment  be  for  less  than  that  amount,  the  case  could  not 
be  removed.*"^ 

It  is  sufficient  that  the  amount  in  dispute  exceeds  $500  at 
the  time  when  the  right  to  a  removal  accrues  and  is  applied 
for — and  interest,  when  the  right  thereto  exists  and  it  is 
claimed,  may  be  regarded  in  determinmg  the  amount  or  value 
in  controversy.^^  The  State  court  decisions,  proceeding  on 
a  different  principle,  are  probabh''  unsound. 

In  actions  sounding  in  tort  the  damages  laid  by  the  plaint- 
iff are  the  amount  of  the  matter  in  dispute. '^- 

58  Walker  v.  Uuited  States,  4  Wall.  163 ;  W.  U.  Tel.  Co.  v.  Levi,  47  Ind. 
552. 

59  Gordon  v.  Longest,  16  Pet.  97;  Kanouse  v.  Martin,  15  How.  198.  207; 
Ladd  V.  Tudor.  3  AVoodb.  &  Miuot,  325 ;  Muns  v.  Dupont,  2  Wash.  C.  C. 
463;  Bennett  V.  Butterworth  (detinue),  8  How.  124;  Peyton  v.  Robert- 
son (replevin) .  9  AVlaeat.  527 ;  United  States  v.  McDowell  (penal  bonds) , 
4  Cranch,  316;  Martin  v.  Taylor  (penalty).  1  Wash.  C.C.  1;  Postmaster- 
General  V.  Cross  (penal  bond),  4  Wash.  C.  C.  326;  King  v.  Wilson  (ille- 
gal taxes),  1  Dillon,  555;  Hartshorn  v.  Wright  (ejectment),  1  Pet.  C.  C. 
64;  Crawford  V.  Bm-nham  (ejectment),  4  Am.  Law  Times,  228;  W.  U. 
Tel.  Co.  V.  Levi,  47  Ind.  552. 

60  See  Lee  v.  Watson.  1  Wall.  337. 

eiMcGinnity  v.  AMiite.  3  Dillon,  350;  Bank  etc.  v.  Daniel.  12  Pet.  32; 
Merrill  v.  Petty,  16  Wall.  338. 

62  Hulsecamp  v.  Teel,  2  Dallas,  358;  Gordon  v.  Longest.  16  Pet.  97; 
West.  Union  Tel.  Co.  v.  Le^^.  47  Ind.  552. 


REMOVAL    OF    CAUSES.  47 

Where  the  right  to  a  removal  has  become  perfect  and  com- 
plete, it  is  not  in  the  power  of  the  other  party  to  defeat  it 
in  either  conrt  by  release  or  by  amendment  of  petition  and 
declaring  for  less  than  live  hundred  dollars.*^' 

It  is  made  a  condition  of  the  right  to  an  appeal  or  writ  of 
error  to  the  Supreme  Court  that  the  ' '  matter  in  dispute  ex- 
ceeds the  sum  or  value  of  two  (now  five)  thousand  dollars, 
exclusive  of  costs."  The  cases  arising  under  this  clause  are 
collected  and  accurately  stated  b}'^  Mr.  Phillips,*^  and  will  be 
found,  in  many  instances,  applicable  to  questions  arisino-  in 
this  regard  under  the  removal  acts. 

In  leaving  this  point,  we  may  be  permitted  to  observe  that 
in  our  judgment  the  most  serious  objection  to  the  removal 
acts,  as  they  now  exist,  is  the  small  amount  required  to 
authorize  a  removal.  In  view  of  the  inconvenience  and  ex- 
pense of  litigating  in  the  Federal  courts,  held  often  more 
than  one  hundred  miles  distant  from  the  residence  of  the 
parties  ;  the  crowded  state  of  their  dockets  ;  and  considering 
that  removals,  especially  by  foreign  insurance  and  railway 
corporations,  often  have  the  effect  to  delay,  if  not  to  oppress, 
those  having  claims  against  them,  it  is  quite  clear  that  the 
amount  to  justify  a  removal  should  be  enlarged,  or  the 
Federal  courts  multiplied,  or  at  all  events  their  judicial 
force  increased. 

SECTION  xn. 

PARTY    ENTITLED    TO    A    REMOVAL CITIZENSHIP 

CORPORATIONS ALIENS . 

Under  the  12th  section  of  the  Judiciary  Act,  omitting  the 
case  of  aliens,  the  right  of  removal  is  limited,  as  we  have 
shown,  to  the  non-resident  defendant,  when  sued  by  a  resi- 
dent plaintiff.  Under  the  act  of  18G6  it  is  limited,  as  we 
have  seen,  under  the  restrictions  therein  imposed,  to  the  non- 
63  Kanouse  V.  Martin,  15  How.  198;  Wright  v.  Wells,  1  Pet.  C.  C.  220; 
Green  v.  Custard,  23  How.  468;  Roberts  v.  Xelson,  8  Blatolif.  74. 
64  Practice  of  the  Supreme  Court,  chap.  YIH. 


48  REMOVAL    OF    CAUSES. 

resident  defendant,  and  it  is  not  given  either  to  the  resi- 
dent defendant  or  to  the  resident  plaintiti'.  Under  the  act 
of  1867  the  right  is  given,  as  above  shown,  under  the 
enumerated  conditions,  to  the  phiintifi'  or  defendant  ;  but  in 
either  case  it  is  onl}^  the  non-resident  citizen  who  can  re- 
move the  case."^ 

Where  the  jurisdiction  of  the  Federal  court  depends  on 
citizenMp,  it  is  the  citizenship  of  the  parties  to  the  record 
that  is  aknie  considered,  and  not  of  those  who,  although 
not  parties,  may  be  beneticially  interested  in  the  litigation. 
This  rule  applies  to  executors  and  administrators  and 
trustees.*'*' 

65  Citizenship  of  a  state,  for  the  purpose  of  conferring  Federal  juris- 
diction, lias  reference  to  domicile  and  residence,  not  the  right  of  suffrage. 
D'Wolf  V.  Kabaud,  1  Pet.  476;  s.  C  Paine  C.  C.  580;  Case  v.  Clarke  5 
Mason  C.  C.  70;  Cooper  v.  Galbraith,  3  Wash.  C.  C.  546;  Shelton  v.  Tiffin, 
6  How.  163;  Lanz  v.  Kandall  (Dist.  Minn.,  Miller,  J),  3  Cent.  L.  J.  688 
(1876).  Effect  of  hona  fide  change  of  domicile.  Jones  v.  League,  18  How. 
76;  Morgan's  Heirs  v.  Morgan.  2  Wheat.  290;  United  States  v.  Myers, 
2  Brock.  516. 

A  State  can  not  make  the  subject  of  a  foreign:  government  a  citizen  of 
the  United  States;  and  resident  unnaturalized  foreigners  may  remove 
causes  to  the  Federal  court  on  the  ground  that  they  are  aliens,  although 
bj'^  state  laws  they  may  vote  at  elections  or  hold  office  under  the  state 
government.  Lanz  v.  Kandall  (Dist.  Minn.,  Mr.  Justice  Miller),  3  Cent. 
L.  J.  688  (1876) ;  ante,  sec.  6,  note. 

66  If  the  administrator  or  executor  and  the  defendant  are  citizens  of  the 
same  state,  the  Federal  court  has  no  jurisdiction,  although  the  intestate 
or  testator  was  a  citizen  of  a  different  state.  Coal  Co.  v.  Blatcliford,  11 
Wall.  172;  Dodge  v.  Perkins.  4  Mason  C.  C.  435;  Childress  v.  Emory.  S 
Wheat.  642;  Carter  v.  Treadwell,  3  Story  C.  C.  25;  Green's. Adminis- 
tratrix V.  Creighton.  23  How.  90.  If  the  action  is  by  or  against  the  de- 
ceased, the  executor  or  administrator  maj'  prosecute  or  defend  it  without 
reference  to  his  own  citizenship.  Clarke  v.  Mathewson.  12  Pet.  164; 
S.  c.  below.  2  Sumner  C.  C.  262.  Tlie  citizenship  of  executors  is  determined 
by  the  state  of  which  they  are  citizens ;  and  the  circumstance  that  they 
have  taken  out  letters  in  another  state  does  not  make  them  citizens  of 
such  state.  Amory  v.  Amory,  36  X.  Y.  Superior  Court  Kep.  (4  Jones  & 
Spencer).  .520  (1874) ;  Geyer  v.  Life  Ins.  Co..  .50  X.  H.  224  (1870).  If  he 
remove  to  another  state  and  become,  in  respect  of  jurisdiction,  a  citizen 
thereof,  he  may  sue  in  the  Circuit  court  of  the  State  in  which  his  letters 
were  granted.     Rice  v.  Houston,  13  Wall.  66.    ' 

Citizenship  of  trustees.  Bonnafee  v.  Williams.  3  How.  574;  Coal  Co.  v. 
Blatchford,  11  Wall.  172;  Gardner  v.  Brown,  21  Wall.  36;  Tnompson  v.. 


REMOVAL    OF    CAUSES.  49 

Ooiy orations  created  by  the  states  are  within  all  the  re- 
moval acts  under  consideration,  and  after  much  uncertainty 
and  fluctuation  of  opinion  in  the  Supreme  Court  of  the 
United  States,  the  settled  rule  now  is  that  a  corporation, 
for  all  purposes  of  Federal  jurisdiction,  is  conclusively  con- 
sidered as  if  it  were  a  citizeu  of  the  state  which  created  it, 
and  no  averment  or  proof  as  to  citizenship  of  its  members 
elsewhere  is  competent  or  material. ^^ 

The  same  principle  applies  to  public  and  municipal  cor- 
porations— they  are  for  jurisdictional  jDurposes  necessarily 

Railroad  Companies,  6  Wall.  134;  Weed  Sewing  Machine  Co.  v.  Wicks 
et  al.,  3  Dillon,  261 ;  Bushnell  v.  Kennedy,  9  Wall.  391 ;  Act  June  1, 1872, 
17  Stats,  at  Large,  197,  sec.  5;  Rev.  Stats.,  sec.  914;  Wood  v.  Davis,  18 
How.  467;  Knapp  v.  Railroad  Co.,  20  Wall.  117.  Compare  Suydara  v. 
Ewing,  2  Blatchf.  359,  as  to  whicli  qiuere. 

Wlio  are  to  be  regarded  as  parties  to  a  bill  in  equity  filed  by  the  com- 
plainant in  behalf  of  himself  and  such  others  as  might  come  in  and  become 
parties,  see  Hazard  v.  Durant,  9  R.  I,  602  (1868). 

67  Railroad  Co.  v.  Harris,  12  Wall.  65,  81;  Railway  Co.  v.  Wliitton, 
13  Wall.  270,  285;  Louisville  etc.  R.  R.  Co.  v.  Letson,  2  How.  497; 
Marshall  v.  The  Baltimore  &  Ohio  Railroad  Co.,  16  How.  314;  The  Cov- 
ington Drawbridge  Company  v.  Shepherd  et  al.  20  How.  232 ;  Ohio  & 
Mississippi  Railroad  Company  v.  "VVlieeler,  1  Black,  286;  Trust  Co.  v. 
Maquillan  (act  of  1867)  3  Dillon,  379;  Minnett  v.  Milwaukee  &  St.  Paul 
Railway  Co.  (act  of  1867),  3  Dillon,  460.  As  to  the  eftect  on  Federal 
jurisdiction  (where  it  is  dependent  upon  the  citizenship  of  the  parties) 
of  charters  granted  by  different  states  to  the  same  company  or  to  companies 
constructing  the  same  line  of  road,  and  as  to  the  effect  of  consolidation  on 
the  jurisdiction  of  the  Federal  courts,  the  following  are  the  principal 
cases:  Ohio  &  Miss.  R.  R.  Co.  v.  AMieeler,  1  Black,  286;  Bait.  &  Ohio 
R.  R.  Co.  V.  Harris,  12  Wall,  65;  Ch.  &  N.  W.  R.  R.  Co.  v.  Whitton,  13 
Wall.  270;  Williams  v.  M.  K.  &  T.  Railway  Co.,  3  Dillon,  267.  See 
also,  Marshall  v.  B.  &  O.  R.  R.  Co.,  16  How.  314;  Bait.  &  O.  R.  R.  Co. 
V.  Gallahue's  Administrator,  12  Grattan,  658;  Goshorn  v.  Supervisors, 
1  West.  Va.  308 ;  Minot  v.  Phila.  Wil.  &  B.  R.  R.  Co.,  2  Abb.  U.  S.  R.  323. 
See  Chicago  &  Northwestern  Railroad  Company  v.  Chicago  &  Pacific 
Railroad  Company,  8  Chicago  Legal  News  (Nov.  14,  1874),  57,  (s.  c.  6 
Bissell,  219),  decided  by  Circuit  Judge  Drummond,  as  to  the  efifect  of 
consolidation  under  charters  of  difterent  states  and  the  citizenship  of  the 
consolidated  company. 

What  is  a  sufficient  statement  and  averment  of  the  citizenship  of  cor- 
porations to  sustain  Federal  jurisdiction :  Express  Co.  v.  Kountze,  8  Wall. 
342;  Ins.  Co.  v.  Francis,  11  Wall.  210;  Manuf.  Bank  v.  Baack,  8  Blatchf. 
137;  S.  C,  2  Abb.  U.  S.  Rep.  232;  Covington  Drawbridge  Co.  v.  Shep- 
4 


50  REMOVAL    OF    CAUSES. 

citizens  of  the  state  under  whose  laws  they  are  created  and 
organized."^ 

A  corporation  of  another  state  may  remove  a  cause  com- 
menced by  attachment  of  property,  although  the  action 
could  not,  by  reason  of  a  citizenship  in  a  legal  sense  out  of 
the  district,  and  inability  to  serve  it  within  the  district,  be 
commenced  by  original  process  in  the  Circuit  court  of  the 
United  States  f^  and  the  right  to  a  removal  in  such  a  case  is 
not  lost  l)y  reason  of  such  corporation  having  an  office  for 
the  transaction  of  business  in  the  state  in  which  the  suit  is 

herd,  20  IIow.  227;  Piqiiignot  v.  Pa.  E.  R.  Co..  IG  How.  104;  Ohio.  & 
Miss.  R.  R.  Co.  V.  Wheeler.  1  Black,  286. 

As  to  the  right  of  joint  stock  companies,  partly  but  not  fully  endowed 
with  the  attributes  of  corporations^  to  sue  in  the  Federal  court,  or  remove 
cases  to  the  Federal  court  on  the  ground  of  citizenship  or  alienage,  there 
is  some  diversity  of  judicial  decision.  The  leading  cases  on  this  point 
are:  Liverpool  Ins.  Co.  v.  Massachusetts,  10  Wall.  566;  Penn.  v.  Quick- 
silver Mining  Co.,  10  Wall.  553;  Dinsmore  v.  Phila.  etc.  R.  R.  Co. 
(McKennan,  Circuit  Judge),  3  Cent.  L.J.  157;  Maltz  v.  Am.  Express 
Co.  (Brown,  J.),  3  Cent.  L.  J.  784. 

(■sCowles  V.  Mercer  County,  7  Wall.  118;  Barclay  v.  Levee  Commrs.  1 
Woods  C.  C.  254.  In  McCoy  v.  Washington  County,  3  Wall.  Jr.  C.  C. 
381,  it  was  contended  "  that  the  County  of  Washington,  merelj'  a  sub- 
ordinate political  division  of  the  State  of  Pennsylvania,  is  not  a  citizen 
of  this  state,  within  the  meaning  of  the  Constitution  or  the  act  of  Con- 
gi'ess,  and  therefore  not  suable  in  this  court."  "To  this  we  answer,'' 
says  Grier,  J.,  '' that  though  the  metaphysical  entity  called  a  corpora- 
tion may  not  1)e  physically  a  citizen,  yet  the  law  is  well  settled,  that  it 
may  sue  and  be  sued  in  the  courts  of  the  United  States,  because  it  is 
but  the  name  under  which  a  number  of  persons,  corporators  and  citi- 
zens may  sue  and  be  sued.  In  deciding  the  question  of  jurisdiction,  the 
court  look  behind  the  name,  to  find  who  are  the  parties  really  in  interest. 
In  this  case  the  parties  to  be  affected  by  the  judgment  are  the  people  of 
Washington  County.  That  the  defendant  is  a  municipal  corporation 
and  not  a  private  one,  furnishes  a  stronger  reason  why  a  citizen  of  an- 
other state  should  have  his  remedy  in  this  court,  and  not  in  a  county 
where  the  parties,  against  whom  the  remedy  is  souglit,  AAOuld  compose 
the  court  and  jury  to  decide  their  own  case.  This  point  is  therefore  over- 
ruled." A  state  statute  can  not  limit  the  liability  of  a  municipal  corpo- 
ration to  be  sued  in  the  courts  of  a  state,  so  as  to  aftect  the  Fedei-al 
jurisdiction.  Cowles  v.  Mercer  County,  7  Wall.  118;  Railway  Co.  v. 
'\^'^litton,  13  Wall.  270. 

f»Blivenv.  New.  Eng.  Screw  Co.,  3  Blatchf.  Ill;  Barney  v.  Globe 
Bank,  5  ib.  107:  Sayles  v.  X.  W.  Ins.  Co..  2  Curtis,  212. 


REMOVAL    OF    CAUSES.  51 

brought.™  Nor  can  such  a  corporation  be  deprived  of  the 
right  of  removal  by  state  legislation.^^ 

Incorporated  bodies  chartered  by  foreign  countries  may 
remove  cases  under  the  provisions  as  to  aliens."'- 

For  jurisdictional  purposes  national  banks  are  deemed 
citizens  of  the  state  in  which  they  are  located,'-^  and  they 
may  sue  in  the  Circuit  court,  although  the  defendants  are 
citizens  of  the  same  state  in  which  the  bank  is  established.^'* 
The  act  of  July  27,  1868  (Revised  Statutes,  sec.  640,  ante, 
sec.  2,  note),  expressly  excludes  national  banks  from  its 
provisions  ;  but  this  has  l)een  considered  not  to  prevent  the 
right  of  removal  in  their  favor,  if  their  case  is  within  any  of 
the  other  removal  acts."'^ 

™ Hatch  V.  Chicago  etc.  R.  R.  Co.,  6  Blatchf .  105.  The  right  of  a  foreign 
corporation  to  remove  a  cause  is  not  affected  bj'  the  legislature  of  the 
state  authorizing  service  of  process  on  Us  agent  in  the  state.  W.  U.  Tel. 
Co.  V.  Dickinson,  40  Ind.  444  (1872)  ;  Hobbs  v.  Manhattan  Ins.  Co.,  56 
Maine,  417;  Morton  v.  Mut.  Life  Ins.  Co.,  105  Mass.  141  (1870).  A  for- 
eign corporation,  sued  by  its  own  assent  in  another  state,  is  notA\'ith- 
standing  a  foreign  corporation,  and  for  all  purposes  of  Fedei-al  jurisdic- 
tion a  citizen  of  the  state  which  created  it.  Pomeroy  v.  iST.  Y.  &  N.  H. 
R.  R.  Co.,  5  Blatchf.  C.  C.  120;  Hatch  v.  Ch.,  R.  I.  &  P.  R.  R.  Co.,  6 
Blatchf.  105. 

"1  Chicago  etc.  Railway  Co.  v.  Whitton's  Adrars.,  13  Wall.  270;  ante, 
sec.  3  and  cases  cited. 

72  Terry  v.  Ins.  Co.,  3  Dillon,  408;  1  Kent's  Com.  348;  see  also  Angell 
&  Ames  on  Corporations,  sees.  377,  378,  and  1  Abbott's  U.  S.  Practice, 
216;  Fisk  v.  Ch.  etc.  Railroad  Co.,  53  Barb.  472:  3  Abb.  Pr.  Rep.  (N.  S.) 
453;  King  of  Spain  v.  Oliver  2  Washington  C.  C.  429. 

'3  Chatham  Nat.  Bank  v.  Mer.  Nat.  Bank,  1  Hun,  (N.  Y.),  702.  See, 
also,  to  the  effect  that  for  jurisdictional  purposes  national Jbanks  are  cit- 
izens of  the  state  where  they  are  located :  Davis  v.  Cook,  9  Nev.  134 
(1874),  following  Manuf.  Nat.  Bank  v.  Baack,  2  Abb.  U.  S.  Rep.  232; 
s.  c,  8  Blatchf.  137,  and  approving  of  the  reasoning  of  Blatchford,  J. 
Same  point,  Cook  v.  State  National  Bank,  52  N.  Y.  96  (1873) ;  s.  c.  be- 
low, 50  Barb.  339,  1  Lans.  494,  holding  that  national  banks  are  citizens  of 
the  state  in  which  they  are  located,  and  may  apply  as  such  for  the  re- 
moval of  causes. 

"I  Union  Nat.  Bank  v.  Chicago,  3  Ch.  Legal  News,  369;  Bank  of  Omaha 
v.  Douglas  County,  3  Dillon  C.  C.  298;  Com.  Bank  v.  Simmons.  6  Ch. 
Legal  News,  344. 

"5  In  the  Chatham  Nat.  Bank  of  New  York  v.  Mer.  Nat.  Bank  of  West, 
Va.,  1  Hun  (N.  Y.),  702,  a  national  bank  was  regarded  as  a  citizen  of  the 


52  REMOVAL    OF    CAUSES. 

But  there  is  a  distinction  between  National  Banking  As- 
sociations and  the  Receiver's  of  such  associations  ;  neither 
under  the  Revised  Statutes  (sec.  640),  nor  under  the  Na- 
tional Banking  Act  (sec.  57),  have  such  receivers  as  such 
the  right  to  remove  cases  from  the  State  courts  into  the 
Federal  courts. ^^ 


SECTION  XIII. 

THE    TIME    WHEN    THE    APPLICATION    MUST    BE    MADE. 

Under  the  12th  section  of  the  Judiciary  Act  (now  Re- 
vised Statutes,  sec.  639,  sub-division  1),  the  application 
must  be  made  by  the  defendant  "  at  the  time  of  entering  his 
appea7'ance  in  the  State  court."  Under  this  provision  the 
defendant  must  promptly  avail  himself  of  this  right,  and 
he  waives  it  if  he  demurs,  or  pleads,  or  answers,  or  other- 
wise submits  himself  to  the  jurisdiction  of  the  State  court." 

state  in  which  it  is  located  and  does  bnsiness,  and  the  national  bank  of 
another  state  may  remove  a  suit  in  Avhich  it  is  a  defendant,  if  the  case  is 
otherwise  within  the  12th  section  of  the  Judiciary  Act,  and  the  applica- 
tion is  made  in  time,  i.  e.,  at  the  time  of  "  entering  its  appearance;"  and 
this,  notwithstanding  the  act  of  July  27,  18G8  (15  Stats,  at  Large,  226; 
Rev.  Stats.,  sec.  640),  excludes  national  banking  associations  from  its 
provisions — the  latter  being  considered  as  providing  for  a  new  class  of 
cases,  and  not  aflecting  the  right  of  removal  given  by  preceding  legisla- 
tion. 

'C  Bird's  Executors  v.  Cockrem,  Receiver.  2  Woods  C.  C.  32,  Brad- 
ley, J.. 

"West  V.  Aurora  City.  6  Wall.  139;  Sweeney  v.  Coffin.  1  Dillon,  73: 
Webster  v.  Crothers,  1  Dillon,  301;  Johnson  v.  Monell,  1  Woohv.  390; 
McBratney  v.  Usher,  1  Dillon,  367,  369;  Robinson  v.  Potter  (too  late 
after  reference  and  continuance),  43  TST.  H.  188;  Savings  Bank  v,  Ben- 
ton, 2  Mete.  (Ky.)  240;  siiprn,  sec.  5.  and  cases  cited. 

As  to  the  right  of  different  defendants  to  remove  at  different  times,  see 
Smith  V.  Rines,  2  Sumn.  338;  Ward  v.  Arredondo.  I  Paine,  410;  Beards- 
ley  V.  Torrey,  4  Wash.  C.  C.  28G;  Field  v.  Lownsdale.  1  Deady.  288; 
Fisk  V.  Union  Pacific  R.  R.  Co.,  8  Blatchf.  243.  299;  svpra,  sec.  5.  and 
dases  cited. 

The  State  court  can  not  restore  right  of  i-emoval  by  allowing  an  ap- 


REMOVAL    OF    CAUSES.  53 

Under  the  acts  of  18(36  and  1867  (now  Revised  Statutes, 
sec.  639,  sub-divisions  2  and  3),  the  time  is  enhirged,  and 
the  petition  for  the  removal  may  be  made  "  at  any  time  he- 
fore  the  trial  or  tinal  hearing  of  the  suit ' '  in  the  State 
court.  The  word  "trial"  refers  to  cases  at  law" — "  hear- 
mg,"  to  suits  in  equity. '^^  Under  this  language  the  petition 
for  the  removal  Tnay,  it  is  certain,  be  made  at  any  time  be- 
fore entering  upon  the  final  trial,  or  the  hearing  on  the 
merits  ;  and  it  must  be  made  l)efore  final  judgment  in  the 
court  of  original  jurisdiction,  and  it  is  too  late  to  make  it 
after  the  cause  has  reached,  and  is  pending  in  the  State 
appellate  court.™ 

"Before  tinal  hearing  or  trial   clearly  means,"  says  Mr. 

pearance  to  be  entered  nunc  pro  tunc.  Ward  v.  Arredondo,  1  Paiue, 
410;  Gibson  v.  Johnson,  Pet.  C.  C.  44. 

7SVannevar  v.  Bryant,  21  Wall.  41,  43,|)er  Waite,  C.  J.;  S.  c.  below, 
Bryant  v.  Kich,  106  Mass.  180. 

79  Stevenson  v.  Williams,  19  Wall.  572;  Yannevar  v.  Bryant,  21  Wall. 
41,  43;  Waggener  v.  Cheek,  2  Dillon,  560:  Kellogg  v.  Hughes,  3  Dillon, 
357 ;  Dart  v.  McKinney,  9  Blatchf.  359 ;  Johnson  v.  Monell  (change  of 
residence  pending  suit),  1  Woohv.  390;  Minnett  v.  Milwaukee  &  St, 
Paul  Eailway  Co.,  3  Dillon,  460,  denying  Galpin  v.  Critchlow,  13  Am. 
Law  Keg.  (N.  S.),  137;  s.  c,  112  Mass.  339,  and  Wliittier  v.  Hartford 
Ins.  Co.,  14  Am.  Law  Keg.  (N.  S.),  121 ;  s.  c.  55  X.  H.  141 ;  see  Lis.  Co. 
v.  Dunn,  19  Wall.  214,  225;  Akerly  v.  Vilas,  1  Abb.  U.  S.  Kep.  284;  s. 
C.  2  Bissell,  110:  Mm-ray  v.  Justices,  9  Wall.  274;  Miller  v.  Fiim,  1  Xeb. 
254  (1867);  Price  v.  Sommers  (N.  D.  Ohio,  Welker,  J.),  8  Ch.  Legal 
News,  290  (1876);  Fasnacht  v.  Frank  (U.  S.  Sup.  Court,  Oct.  1874), 
23  Wall.  416;  Craigie  v.  McArtlmr,  9  Ch.  Legal  News,  156. 

What  was  a  "final  trial"  within  the  meaning  of  the  act  of  1867  (Rev. 
Stats.,  sec.  639,  cl.  3),  was  considered  in  AYest  Virginia  in  a  case  of  un- 
la^N-ful  detainer,  commenced  before  a  justice  of  the  peace,  where  judg- 
ment went  against  a  citizen  of  another  state,  who  appealed  to  the  Cir- 
cuit court,  and  then  applied  to  remove  the  case  to  the  Federal  court  un- 
der the  act  of  1867.  The  lower  court  denied  the  application,  and  ren- 
dered judgment  against  the  defendant,  and  on  appeal  the  Court  of  Appeals 
reversed  the  judgment,  resting  its  decision  upon  two  grounds:  1.  No 
motion  to  remove  could  have  been  made  before  the  justice,  that  not  be- 
ing a  "  State  court "  within  the  meaning  of  the  act  of  Congress.  2.  The 
case  on  appeal  from  a  justice  is  to  be  tried  de  novo  in  the  Circuit  court 
the  same  as  if  never  tried,  and  hence  there  was  no  "final  trial '"  within 
the  intent  of  the  act  of  Congress.  Kathbone  Oil  Co.  v.  Kauch,  5  West 
Va.  79  (1871). 


54  REMOVAL    or    CAUSES. 

Justice  Field,  "  before  final  judgment  in  the  court  of  orig- 
inal jurisdiction,  where  the  suit  is  brought.  Whether  it 
may  not  mean  still  more — before  the  hearing  or  trial  of  the 
suit  has  commenced,  which  is  followed  by  such  judgment 
— may  be  questioned  ;  but  it  is  unnecessar}^  to  determine 
that  question  in  this  case."^  It  would  seem,  however,  that 
it  would  be  too  late  to  defer  the  application,  until  the  trial 
was  actually  entered  on.^^ 

Althou2:h  there  is  some  conflict  between  the  State  and 
Federal  courts  on  the  point,  yet  the  weight  of  the  cases  and 
the  authoritative  view  is,  that  if  the  trial  court  has  wholly 
set  aside  a  verdict  and  granted  a  new  trial,  or  if  the  State 
appellate  court  has  wholly  reversed  the  judgment  and  re- 
manded the  case  to  the  court  of  original  jurisdiction  for  a 
trial  de  novo,  then,  in  either  event,  it  is  not  too  late  under 
the  act  of  1866  or  1867,  to  apply  to  remove  the  cause,  as  it 
is  in  the  same  posture  as  before  the  first  trial  or  hearing 
was  had.^^ 

80  Stevenson  v.  Williams,  supra;  Beery  v.  Irick,  22  Gratt.  (Va.)..4S7 
(1872);  Williams  v.  Williams,  24  La.  Ann.  55;  Douglas  v.  Caldwell, 
("final  hearing"  what?)  65  N.  C.  248  (1871). 

81  Application  for  i-emoval,  under  the  acts  of  1866  and  1867,  must 
he  made  before  trial  or  hearing  commences;  it  is  too  late  if  made  during- 
the  progress  of  the  trial,  and  this  principle  is  not  varied  by  the  fact,  that 
during  the  trial  an  amendment  of  the  declaration  was  allowed  on  which 
issue  was  not  joined  at  the  time  the  petition  to  remove  the  case  was  filed. 
AdamsExpressCo.  V.Trego, 35  Md. 47  (1871);  see  also  Lewis  v.  Smj-the 
(Woods,  Circuit  Judge),  2  Woods  C.  C.  117  (1875),  referred  to  infra. 

«-^Vannevar  v.  Bryant.  21  Wall.  41,  43,  per  Waite,  C.  J.;  S.  C„  106 
Mass.  180;  Stevenson  v.  Williams,  19  Wall.  572;  Waggener  v.  Cheek.  2 
Dillon.  560 ;  Kellogg  v.  Hughes,  3  Dillon,  357 ;  Dart  v.  McKinney.  0 
Blatchf .  35!i ;  .Johnson  v.  Monell  (change  of  residence  pending  suit) .  1 
Woolw.  390;  Minnett  v.  Milwaukee  &  St.  Paul  Kaihvay  Co.,  3  Dillon, 
460,  denying  Galpin  v.  Critehlow,  13  Am.  Law  Keg.  (X.  S.)  137;  s.  C.  112 
Mass.  339,  and  Whittier  v.  Hartford  Ins.  Co.,  14  Am.  Law  Reg.  (N.  S.)  121 ; 
S.  C,  55  N.  H.  141.  See  Ins.  Co.  v.  Dunn,  19  Wall.  214.  225;  Akerly  v. 
Vilas,  1  Abb.  U.  S.  Rep.  284;  s.  c,  2  Bissell,  110;  Murray  v.  Justices,  9 
Wall.  274;  Fasnacht  v.  Frank,  U.  S.  Sup.  Court,  Oct.  1874,  supra ;  Dart  v. 
Walker.  4  Daly  (IST.  Y.),  188  (1871),  also  holding  that  under  act  of  1866 
or  1867  removal  may  be  had  after  a  reversal  and  order  for  a  new  trial. 

The  cases  in  the  State  courts  holding  a  different  doctrine  from  that 
stated  in  the  text  are  not  sound  expositions  of  the  statute.     The  follow- 


REMOVAL    OF    CAUSES.  55 

The  case  of  the  Insurance  Co.  v.  Dunn  (19  Wall.  214) 
affords  a  strikmg  illustration  of  the  meaning  of  the  phrase, 
^^  final  judgment  "  in  the  acts  of  1867.  The  plaintiff  in  that 
case  had  a  verdict  and  judgment  thereon  in  one  of  the 
courts  of  Ohio.  The  defendant  (the  Insurance  Company) 
under  the  statute  of  the  State,  applied  for  a  new  trial,  and 
gave  bond  in  that  behalf.  This  had  the  effect,  under  the 
statute  of  the  state,  to  vacate  the  verdict  and  Judgment  as  if 
a  new  tiial  had  been  granted,  except  that  lien  of  the  judg- 
ing are  some  of  the  more  important  of  these :  Hall  v.  Ricketts,  9  Bush 
(Ky),  366  (1872);  Akerly  v.  Vilas,  24  Wis.  165;  Home  Life  Ins.  Co.  v. 
Dunn,  20  Ohio  St.  175;  Crane  v.  Eeeder,  28  Mich.  527  (1874) ;  Galpin  v. 
Critchlow,  112  Mass.  339  (1873). 

Where  the  Supreme  Court  of  a  State  has  reversed  the  decree  of  the 
lower  court  and  remanded  the  cause  unth  instructions  to  dismiss  the  bill, 
it  is  too  late  to  apply  for  a  removal  to  the  Federal  court  under  the  act  of 
March  2,  1867.  Boggs  v.  Willard,  3  Bissell,  256  (1872),  Blodgett,  J.  But 
where  the  State  Supreme  Court  has  ordered  a  new  trial,  the  plaintiff  may 
dismiss  and  commence  in  the  Federal  court.  Hazard  v.  Chicago  etc.  R. 
R.  Co.,  4  Bissell,  453.  Effect  of  the  decision  of  the  State  Supreme  Court 
in  such  a  case  considered.     lb. 

The  case  of  McKinley  v.  Chicago  &  ^N".  W.  Railway  Co.,  now  in  the 
Supreme  Court  of  the  United  States  on  a  writ  of  error  to  the  Supreme 
Court  of  Iowa,  presents  a  new  and  interesting  point.  The  case  in  the 
State  court  was  for  personal  injury.  The  plaintiff  had  a  verdict  and 
judgment  helow.  The  railway  company  appealed  to  the  Supreme  Comt 
of  the  State,  which  reversed  the  judgment  and  ordered  a  new  trial,  and 
issued  its  procedendo,  which  was  filed  within  sixty  days  in  the  lower  court. 
Thereupon  the  railway  company  in  due  form  made  and  filed  its  petition 
and  l>ond  for  removal  of  the  cause  to  the  Federal  coint  under  the  acts  of 
1867  and  1875.  This  was  in  vacation,  and  tliere  was  no  order  upon  it. 
By  the  law  of  the  State,  causes  in  the  Supreme  Court  are  to  be  remanded 
for  a  new  trial,  if  a  new  trial  be  ordered  (Code,  sec.  3206),  and  there  is  a 
pro-v-ision  for  recalling  &  procedendo,  if  a  petition  for  rehearing  be  filed  in 
sixty  days  (Code,  sec.  3201).  After  the  petition  and  bond  for  removal  had 
been  filed  as  above,  but  within  the  sixty  days,  a  petition  for  rehearing- 
was  filed  in  the  Supreme  Court  of  the  State,  and  the  procedendo  was  re- 
called. The  railway  company  moved  the  State  Supreme  Court  to  dismiss 
the  petition  for  rehearing,  because  the  court  had  no  further  jurisdiction 
of  the  cause,  inasmuch  as  the  same  was  duly  removed  to  the  Federal  court, 
after  the  procedendo  was  filed  and  before  it  was  recalled.  The  State  Su- 
preme Court  overruled  the  motion,  and  subsequently  granted  the  rehear- 
ing and  rendered  judgment  against  the  railway  company,  which  has  sued 
out  a  wi-it  of.  error,  which  is  now  pending  in  the  Supreme  Court  of  the 
United  States. 


56  REMOVAL    OF    CAUSES. 

ment  remained  as  security  for  the  plaintiff .  When  the  case 
was  in  this  status,  the  compan}'^  applied  to  remove  the  canse 
under  the  act  of  1867,  and  it  was  held  that  there  had  been 
wo  final  trial,  that  the  application  was  in  time,  and  that  the 
suit  was  removable  ;  and  the  subsequent  judgment  in  the 
State  court  was  reversed  by  the  Supreme  Court  of  the  United 
States.  ^^ 

But  a  cause  can  not  be  removed  where  a  verdict  has  been 
rendered,  and  a  motion  is  pe^icZm^  to  set  the  verdict  aside. 
Such  a  motion  must  be  disposed  of,  and  be  granted,  so  that 
the  right  to  a  second  trial  is  complete,  before  the  cause  can 
be  transferred,  since,  says  the  Chief  Justice,  "  every  trial  of 
a  cause  is  final  until,  in  some  form,  it  has  been  vacated. 
Causes  can  not  be  removed  to  the  Circuit  court  for  a  review 
of  the  action  of  the  State  court,  but  onl}^  for^trial.  The  Cir- 
cuit court  can  not,  after  a  trial  in  a  State  court,  determine 
whether  there  shall  be  another.    That  is  for  the  State  court. 

8=' 111  Ohio,  where  a  case  is  commenced  in  the  Coift-t  of  Common  Plea.s, 
where  a  trial  is  had,  and  an  appeal  taken  to  the  District  court  of  the 
State,  it  is  too  late,  under  the  act  o/1875,  to  apply  to_  remove  the  case  to 
the  Federal  court.  Welker,  J.,  distinguishes  this  case  from  Ins.  Co. 
V.  Dunn,  19  Wall.  214,  and  applies  the  doctrine  of  Stevenson  v.  Williams, 
19  Wall.  572.  and  regards  the  hearing  in'!  the  Common  Pleas  as  '•  final  " 
within  the  meaning  of  the  removal  act,  although  the  effect  of  the  appeal 
is  to  vacate  the  decree  and  entitle  the  party  to  a  trial  de  novo.  Price  v. 
Sommers  (Xorth.  Dist.  Ohio),  8  Ch.  Legal  Xews.  290  (187G).  Similar 
principle  in  respect  to  attempt  to  remove  from  an  appellate  court  a  case 
which  originated  in  the  Probate  court,  after  a  decision  and  appeal :  it 
was  held  not  removable.  Craigie  v.  McArthur  (Dist.  Minn..  Dillon  and 
Kelson,  JJ.),9  Ch.  Legal  Xews,  156  (1876)  ;  s.  c,  4  Cent.  L.J.  237;  s.  C, 
15  Alb.  L.  J.  121.  The  plaintiff" had  a  judgment  on  a  verdict;  the  de- 
fendants sued  out  a  writ  of  review  and  then  applied,  the  judgment  re- 
maining unreversed,  to  remove  the  cause  under  the  Eevised  Statutes,  sec. 
639.  cl.  3;  held,  under  the  legislation  of  the  state  as  to  effect  of  the 
flj-st  judgment  and  of  the  proceeding  for  review,  and  distinguishing  the 
case  from  Ins.  Co.  v.  Dunn  (19  Wall.  214).  that  the  cause  was  not  remov- 
able at  that  stage.  Whittier  v.  Hartford  Fire  Ins.  Co.,  .55  X.  H.  141 
(1875),  commented  on,  and  its  principle  applied  to  a  case  where  the  ap- 
plication for  removal  was  made  after  verdict  set  aside  and  a  new  trial 
granted.  Cliandler  v.  Coe,  5G  X.  H.  184.  Contra,  Minnett  v.  Mil.  & 
St.  Paul  Railroad  Co.,  3  Cent.  L.  J.  281 ;  s.  c,  3  Dillon,  460,  and  see  cases 
cited  ante. 


REMOVAL    OF    CAUSES.  57 

To  authorize  the  removal,  the   action  must,  at  the  time  of 
the  application,  be  actually  pending  for  trial. "^ 

Under  the  acts  of  1866  and  1867,  it  is  sufficient,  it  seems, 
as  .respects  citizenship,  that  the  defendant  applying  for  the 
removal  is,  at  the  time  of  tiling  his  petition  therefor,  a  citi- 
zen of  another  state,  and  the  plaintift'  a  citizen  of  the  state 
in  which  the  suit  is  brought. ^^ 

One  of  several  defendants  sued  as  copartners  may,  if  the 
other  requisites  exist,  have  the  cause  removed  into  the  Fed- 
eral court,  so  far  as  concerns  himself,  under  the  act  of  1866.^ 

Under  the  act- of  March  3,  1875  (sec.  3),  the  time  for  the 
removal  is  greater  than  under  the  Judiciary  Act,  but  not  so 
o-reat  as  under  the  acts  of  1866  and  1867  last  noticed.  The 
act  of  1875  requires  the  petition  in  the  State  court  to  be 
made  and  tiled  therein  ' '  before  or  at  the  term  at  which  such 
cause  could  be  first  tried,  and  before  the  trial  thereof."  The 
word  term  as  here  used  means,  according  to  the  construction 
which  it  has  received  in  the  8th  judicial  circuit,  the  term  at 
which,  under  the  legislation  of  the  state  and  the  rules  of 
practice  pursuant  thereto,  the  cause  is  tirst  triable,  i.  e.,  sub- 
ject to  be  tried  on  its  merits  ;  not  necessarily  the  term  when, 
owing  to  press  of  business  or  arrearages,  it  may  be  first 
reached,  in  its  order,  for  actual  trial.  This  act  gives  the 
right  of  removal  to  either  party — the  resident  as  well  as  the 
non-resident  party — and  no  affidavit  of  prejudice  is  required  ; 
and  it  was  the  obvious  purpose  of  Congress  by  the  use  of 
the  words  "  before  or  at,  etc.,  the  term  at  which  the  cause 
could  he  first  tried,"  etc.,  to  require  the  election  to  be  taken 
at  the  first  term  at  which,  under  the  law,  the  cause  was  tri- 
able on  its  merits.  The  judicial  construction  elsewhere  of 
the  act  of  1875  is  in  accordance  with  these  views. ®^ 

siVannevar  v.  Bryant.  21  Wall.  41,43;  s.  C..106  Mass.  180;  seeWhittier 
V.  Hartford  Ins.  Co.  55  N.  H.  141. 

S5MeGinnity  v.  White,  3  Dillon,  350.  Contra,  Dart  v.  Walker,  4  Daly 
(X.  Y.),  188  (1871).     See  -hifra,  sec.  14  . 

^Ib.;  and  see  supra  sec.  6  and  sec.  9,  note. 

87  Ames  V.  Colorado  Central  R.  E.  Co.  (Hallett,  J..  February.  1877),  4 
Cent.  L.  ,J.  199. 


58  REMOVAL    OF    CAUSES. 

The  decisions  under  the  acts  of  1866  and  18(57,  that  a  re- 
moval may  be  applied  for,  after  a  verdict  has  been  set  aside 
and  a  new  trial  granted,  or  the  judgment  of  the  trial  court 
has  been  wholly  reversed  and  a  trial  de  novo  awarded,  ai*e, 
it  is  supposed,  inapplicable  under  the  act  of  1875,  which  re- 
quires the  petition  for  the  removal  to  be  made  "  before  or  at 
etc.,  the  term  at  which  the  cause  could  he  first  tidied  and  be- 
fore the  trial  thereof."  It  is  clearly  too  late  to  apply  for 
the  removal  after  a  trial  has  once  begun,  although  it  may 
result  in  a  mistrial,  or  in  a  verdict  or  judgment  that  may  be 
set  aside  with  an  order  for  a  new  trial. ^   Accordingly  it  has 

''  We  understand  that  Judge  Davis,  when  sitting  as  circuit  justice  for 
the  district  of  Indiana,  held  that  the  application  for  removal  must  be 
made  at  the  first  term  at  which  the  cause  could  be  put  at  issue,  and  be- 
fore the  ti-ial  thereof."    Buskirk's  Indiana  Practice,  459. 

A  cause  was  at  issue  and  could  have  been  tried,  but  hy  consent  urns  con- 
tinued. Judge  Diummond  held,  under  the  act  of  1875,  that  it  was  too 
late  to  remove  the  case  at  a  subsequent  term,  as  the  continuance  was 
neither  the  act  of  the  law  nor  of  the  court.  Scott  et  al.,  Trustees,  v. 
Clinton  &  Springfield  K.  K.  Co.,  8  Chicago  Legal  Xews,  210;  s.  c,  6  Bis- 
seli,  529,  where  the  case  thus  decided  is  referred  to  and  distinguished. 

A  chancery  cause  can  not  be  tried  until  the  issues  are  made  up; — if  there 
is  no  delay  in  completing  the  issues  on  the  part  of  the  applicant  for  the 
removal,  the  application  is  in  time,  if  made  before  the  lapse  of  a  term  at 
which  the  cause  could  have  been  tried.  Whether  laches  in  making  up 
issues  will  defeat  right  of  removal,  if  removal  be  applied  for  before  the 
issues  are  completed,  qucere?  Scott  et  al..  Trustees,  v.  Clinton  &  Spring- 
field R.  R.  Co.,  8  Chicago  Legal  News,  210;  s.  c.  6  Bissell,  529,  Drum- 
luond,  J. 

Where  a  I'eplication  under  the  local  law  and  practice  is  necessary  to 
complete  the  issue,  and  where  there  is  no  default  in  making  up  the  is- 
sues hy  the  party  who  applies  for  a  removal  of  the  cause,  no  term  has 
passed  at  which  the  cause  could  have  been  tried  within  the  meaning  of 
the  act  of  March  3,  1875,  sec.  3.  Mich.  Central  R.  R.  Co.  v.  Andes  Ins. 
Co.  (S.  D.  Ohio,  Swing,  J.),  9  Ch.  Legal  News,  34.  In  this  case.  Swing, 
J.,  approves  of  the  construction  of  the  act  of  1875,  in  respect  to  the  time 
of  removals  given  by  Drummond,  Circuit  .ludge,  in  Scott  et  al.,  Trustees, 
V.  Clinton  etc.  R.  R.  Co.,  supra. 

88  A  party  entitled  to  a  removal  of  a  cause,  who  proceeds  to  trial  with- 
out apphing  for  a  transfer  to  the  Federal  court,  is  not,  under  the  act  of 
1875,  entitled  to  a  removal  at  a  subsequent  term,  although  a  new  trial 
may  have  been  granted  him ;  in  this  respect  the  act  of  1875  is  difterent 
fi-om  the  acts  of  1866  and  1867.  Young  v.  Andes  Ins.  Co.  (S.  D.  Ohio, 
Swing,  J.),  3  Cent.  L.  J.  719  (1876). 


REMOVAL    OF    CAUSES.  59 

been  held,  under  the  act  of  March  3,  1875,  that  the  appli- 
cation for  removal  must  be  made,  before  the  trial  on  its 
merits,  or  on  a  question  lohich  results  in  a  final  judgment  or 
decree,  commences.  It  is  therefore  too  late  to  apply  for 
the  removal  after  the  pleadings  have  been  read  and  the  ev- 
idence submitted,  and  before  the  argument  has  begun. 

Where  the  only  objection  in  the  Federal  court  to  the  re- 
moval is  that  the  application  was  not  made  in  the  State 
court  in  time,  this  objection  may  undoubtedly  be  waived 
by  acquiescence,  or  even  the  failure  of  the  other  party  to 
make  it  the  ground  of  an  objection  to  the  jurisdiction  of  the 
Federal  court  in  proper  time  ;  and  it  will  be  waived,  we 

!« Lewis  V.  Smythe  (Woods,  Circuit  Judge),  2  Woods  C.  C.  117  (1875). 
Construing  the  word  "trial,"  as  used  in  section  3  of  the  act  of  1875,  in 
reference  to  the  time  when  the  removal  must  he  applied  for,  Woods, 
Circuit  Judge,  in  Lewis  v.  Smythe,  2  Woods  C.  C.  117,  118,  119,  says: 
•'  By  the  word  •  trial,'  as  used  in  the  statute,  I  do  not  understand  the 
argument,  investigation  or  decision  of  a  question  of  law  merely,  unless 
it  is  decisive  of  the  case,  and  the  question  results  in  a  final  judgment 
or  decree.  The  decision  of  the  court  on  a  demurrer,  for  instance,  or  on 
exceptions  to  the  sufficiency  of  a  plea,  which  is  followed  by  amendments 
or  new  pleadings,  and  which  does  not  end  the  case,  is  not  the  trial  meant 
by  the  statute."  The  trial  meant  is  one  which  "  involves  the  facts  of  the 
case ;  and  whenever  the  investigation  of  the  facts  of  a  case  simply,  or  the 
facts  in  connection  Avith  the  law  is  entered  upon  by  the  court  alone,  or 
by  the  court  and  juiy,  the  trial  maybe  said  to  have  begun."  The  peti- 
tion must  be  filed  not  only  before  "  the  trial  is  completed  and  ended,  but 
before  it  commences." 

Construing  the  word  "trial"  in  the  act  of  1875,  sec.  3,  see  Price  v. 
Sommers  (North.  Dist.  Ohio),  cited  supra,  8  Ch.  Legal  News,  290. 

In  Ames  v.  Colorado  Central  K.  K.  Co.  (Dist.  Col. ;  Dillon  &  Hallett, 
JJ.)  4  Cent.  L.  J.  199,  it  was  ruled,  under  the  act  of  1875,  that  the  appli- 
cation to  remove  a  cause  must  be  made  to  the  State  court  at  or  before 
the  term  in  which  according  to  the  local  law  and  practice  of  the  court, 
the  cause  coiJd  have  been  finally  heard.  Accordingly  where  issue  was 
joined  nearly  one  month  before  the  end  of  a  term  of  the  State  court, 
and  it  does  not  appear  but  that  a  final  hearing  could  have  been  had  at 
that  term,  an  application  thereafter  made  to  remove  the  cause  under 
the  act  of  1875  is  too  late.  It  was  also  decided  that  the  act  of  1875, 
which  provides  that  any  suit  "  now  pending  or  hereafter  brought  in  any 
State  court",  of  the  description  therein  specified,  may  be  removed  into  a 
Federal  court,  is  not  applicable  to  a  suit  brought  in  a  Territorial  court, 
although  on  the  admission  of  the  Territory  as  a  State  such  suit  passed 
into  the  jurisdiction  of  a  State  court.     Ih. 


^0  REMOVAL    OF    CAUSES. 

think,  unless  the  objection  be  made  hy  the  party  entitled  to 
make  it,  before  he  takes  any  affirmative  action  in  the 
Federal  court,  or  voluntarily  submits  himself  to  its  action. ^^ 
In  one  case,  the  mere  failure  to  move  to  remand  at  the 
same  term  at  which  the  record  was  liled,  the  party  making 
the  motion  not  having  taken  any  steps  in  the  cause  after  its 
removal,  was  held  not  to  preclude  making  the  objection  at 
the  next  term.^^ 

The  act  of  March  3,  1875,  sec.  2,  extends,  intei'  alia,  to 
"  ani/  suit  *  *  now  pending  ;  '"  and  by  section  3,  the 
petition  for  removal  must  be  filed  in  the  State  court  "  be- 
fore or  at  the  term  at  which  said  cause  could  be  first  tried, 
and  before  the  trial  thereof."  It  has  been  contended  that 
the  general  language  of  the  act  "now  pending,"  does  not 
include  cases,  where  prior  to  the  passage  of  the  act  a  term  of 
the  State  court  had  passed,  at  which  the  cause  might  have 
been  tried,  though  it  was  not ;  nor  to  cases  where  there  had 
been  a  trial  prior  to  the  passage  of  that  act,  and  a  new  trial 
had  been  ordered,  and  the  cause  was  pending  for  such  re- 
trial when  the  act  took  effect.  But  the  Federal  Circuit 
courts  have  uniformly,  and  we  think,  properly  decided  other- 
wise, and  have  held  that  causes  which  might  have  been 
tried  before  the  passage  of  the  act  of  March  3,  1875,  but 
were  not,  and  which  were  pending  for  trial  when  that  act 
went  into  operation,  as  well  as  causes  once  tried,  but  in 
which  a  new  trial  had  been  ordered,  and  which  were  pend- 
ing,  ready  for  retrial    when  the  act    took    effect,    are    re- 

90  The  objection  that  the  application  to  remove  the  cause  was  not 
made  in  time  maybe  conclusively  loaived  by  submitting  to  the  jurisdiction 
of  the  Circuit  court  by  taking  testimony  and  bj-  delaying  the  objection 
for  an  unreasonable  time.  French  v.  Hay,  22  Wall.  244;  Ames  v.  Colo- 
rado Central  E.  K.  Co.  (Dist.  Col.),  9  Ch.  Legal  Xews,  132,  (1876); 
s.  c,  4  Cent.  L.  J.  199;  Young  v.  Andes  Ins.  Co.,  (S.  D.  Ohio;  Swing 
J.),   3  Cent.  L.  J.  719,  (1876). 

91  See  opinion  of  Yaple.  J.,  in  Kaufman  v.  McNutt,  (Sup.  Court  of  Cin.)  , 
3  Cent.  L.  J.  408:  Kain  v.  Texas  Pacific  R.  R.  Co.,  (under  act  of  July 
27,  1868,  East.  Dist.  Texas,  Duval.  J.),  3  Cent.  L.  J.  12  (187.5)  ;  Carring- 
ton  V.  Florida  R.  R.  Co.  (Benedict,  J.),  9  Blatchf.  467  (1872). 


EEMOVAL    OF    CAUSES.  61 

movable, ^'^   if  the  application   therefor  be  made  after    the 
passage  of  the  act  and  within  the  time  therein  required. ^'^ 


SECTION  XIV. 

MODE  OF  MAKING  APPLICATION  FOR  REMOVAL BOND,  ETC. 

Underthe  Revised  Statutes,  sec.  639,  the  applicant  for  the 
removal  must  file  his  petition  therefor,  stating  the  grounds 
for  the  removal,  and  offer  in  the  State  court  ffood  and  suffi- 
cient  surety  for  his  entering  in  the  Circuit  court,  on  the  first 
day  of  its  next  session,  copies  of  the  process  [proceedings] 
against  him,  and  of  all  pleadings,  depositions  and  other  pro- 
ceedings in  the  cause,  etc.  This  petition  is  not  required  to 
be  verified. 

Under  the  act  of  1867  (Revised  Statutes,  sec.  639,  sub- 
division 3),  there  is  required  in  addition  to  the  petition  for 
VQYtiOYAX  ?i\\  affidavit  of  prejudice  or  local  injiiience,  which, 
wherever  possible,  should  be  made  by  the  party  himself ;  or 
if  the  petition  is  on  behalf  of  a  corporation,  by  the  presi- 
dent or  managing  or  other  proper  officer,  or  by  some  person 
authorized  to  control  the  case.^^     The  decisions   upon  the 

92  Crane  v.  Eeeder,  (Emmons,  Circuit  Judge) ,  15  Albany  L.  J.  103, 
denying  correctness  of  tlie  contrarj-  decision  of  tlie  Supreme  Court  of 
Michigan,  28  Mich.  527;  Andrews,  Exec.  v.  Garrett, (Swing,  Dist.  Judge), 
3  Cent.  L.  J.  797;  s.  C.  Ch.  Legal  Xews  (January  8,  1876),  p.  132;  Mer. 
and  Manuf.  Bank  v.  Wheeler,  (Johnson,  Circuit  Judge),  3  Cent.  L.  J.  13; 
Hoadley  v.  San  Francisco,  (Sawyer.  Circuit  Judge) ,  8  Cliicago  Legal 
Xews,  134.  Tlie  decisions  in  tlie  8tli  judicial  circuit  have  always  been  in 
accordance  with  this  view. 

93  Ames  V.  Colorado  Central  R.  R.  Co.,  (DiUon  &  Hallett,  JJ.)  Feb. 
1877,  cited  supra. 

9* See  Anon.,  1  Dillon,  298.  note;  Trust  Co.  v.  Maquillan,  3  Dillon, 
379,  380,  where  Mr.  Justice  Miller  is  reported  as  saying:  "  I  am  not  im- 
pressed with  the  soundness  of  the  argument  that,  because  corporations 
can  not  make  an  affidavit,  except  through  the  proper  officers,  thej^  were 
not  within  the  contemplation  of  Congress.  I  think  that  the  proper  offi- 
cers of  corporations  may  make  the  necessary  affida\'it  to  procure  the  re- 
moval." 

The  president,  and  perhaps  the  general  manager  of  a  railway  com- 


62  REMOVAL    OF    CAUSES. 

point  whether  an  attorney  may  make  the  affidavit  in  any 
case,  or  what  officers  of  a  corporation  may  make  it,  are 
few. 

It  is  not  necessarj^  to  state  in  the  affidavit  tlie  reasons  or 
facts  showing  the  local  inflnence  or  prejudice  ;  for  this  is  not 
a  traversable  matter  either  in  the  State  or  Federal  court.^^ 

As  the  party  himself  is  a  non-resident  and  may  not  be  as 
well  advised  as  his  local  agent  or  attorney  as  to  the  exist- 
ence of  local  influence  or  prejudice,  there  would  seem  to  be 
no  reason  for  requiring  the  affidavit  in  all  cases  to  be  made 
b}^  the  party ;  and  some  parties,  as  infants  or  persons  non 
compos  mentis^  could  not  make  it.  If  an  attorney  or  agent 
makes  the  affidavit,  it  is  good  practice  to  state  why  it  is  not 
made  by  the  party  himself. 

Under  the  act  of  March  3,  1875,  the  removal  is  effected 


pany,  \%prima  facie  authorized  to  make  the  required  affidavit  iu  such  a  case. 
Minnett  v.  Milwaukee  etc.  Kailway  Co.,  3  Dillon  C.  C.  460  (1875),  Nel- 
son, J.;  s.  c,  13  Alb.  Law  J.  254.  In  Kain  v.  Texas  Pacific  R.  R.  Co.,  3 
Cent.  L.J.  12,  the  petition  for  removal  was  verified  by  the  solicitor  of  the 
coi-i)oratiou  defendant,  authorized  to  appear  and  conduct  suits  for  it  in 
the  state  of  Texas ;  no  question  was  made  as  to  his  authority  or  right  to 
file  and  verify  the  petition,  which  was  under  the  act  of  July  27,  1868. 
(Revised  Statutes,  sec.  640.) 

The  superintendent  of  a  railroad  company  having,  as  incident  to  his 
office  as  such,  no  authority  to  represent  the  companj'in  judicial  proceed- 
ings, the  Supreme  Court  of  Massachusetts  decided  that  such  an  officer, 
unless  specially  authorized  by  the  corporation,  has  no  power  to  make  the 
affidavit  of  local  influence  or  prejudice  required  by  the  act  of  1867,  and 
on  this  ground  held,  that  the  State  court  rightfully  refused  to  transfer 
the  cause.  Gray,  C.  J.,  observed:  "'The  petition  may  doubtless  be 
signed,  and  the  affidavit  made  by  some  person  authorized  to  repre- 
sent the  corporation.  But  the  authority  of  any  person  assuming  to  rep- 
resent it  must  appear.  No  officer  of  a  corporation,  unless  specially  au- 
thorized, has  power  to  bind  the  corporation,  except  in  the  discharge  of 
his  ordinary  duties."'  Mahone  v.  Manchester  etc.  R.  R.  Corp.,  Ill  Mass. 
72  (1872).  ' 

The  affidavit  of  local  prejudice  or  influence  under  the  act  of  1867  may 
he  taken  and  certified  in  conformity  with  the  laws  of  the  state,  as  there 
is  no  act  of  Congress  regulating  this  subject.  Bowen  v.  Chase,  7  Blatchf. 
255. 

95 Anon.,  1  Dillon,  298,  note;  Meadow  Valley  Mine  Co.  v.  Dodds,  7 
Kev.  143. 


REMOVAL    OF    CAUSES.  63 

by  the  proper  party  making  and  tiling,  in  the  State  court,  a 
petition  in  the  suit  to  be  removed,  setting  forth  therein  the 
grounds  for  the  removal.  This  petition  is  not  required  to  be 
verified. ^'^  Petitions  for  removal  usually  state  not  only  the 
grounds  for  the  removal  arising  from  citizenship  or  the  na- 
ture of  the  subject-matter,  but  also  that  the  amount  in  dis- 
pute exceeds  $500.  Where,  however,  the  amount  is  shown 
by  the  pleadings  in  the  case  to  exceed  this  sum,  it  is  not 
necessary,  although  it  is  not  improper,  to  make  a  statement 
in  the  petition  for  the  removal  as  to  the  sum  or  value  in  dis- 
pute.^^  The  petition  for  removal  should  be  carefully  framed, 
and  in  removals  under  the  Revised  Statutes,  sec.  639,  the 
prudent  practitioner  will  follow  the  exact  language  of  the 
statute  in  statino-  the  o-rounds  for  the  removal.  ^^ 

It  has  been  decided  by  some  of  the  State  courts  that  the 
petition  for  the  removal  must  expressly  state  that  the  parties 
were  citizens  of  the  respective  states  at  the  time  the  suit  was 
commenced,  and  that  it  is  not  sufficient  to  state  it  in  the  pres- 
ent tense,  or  as  of  the  time  when  the  petition  for  removal 
was  made  or  filed. ^^  This  view  is  open  to  some  doubt.  It 
overlooks  the  purpose  of  the  Constitution  and  of  Congress 
in  providing  for  removals,  which  was  to  give  a  resort  hj  the 
non-resident  party  to  a  tribunal  in  which  the  citizen  of  the 
state  should  have  no  advantage  over  him.  It  is  inconsistent 
with  several  adjudications  under  the  latter  acts.^*'  Whatever 
may  be  the   law  on  the  point,  the  careful  attorney  will  state 

96  Connor  v.  Scott,  3  Cent.  L.  J.  305 ;  Merchants'  etc.  Bank  v.  Wlieeler, 
3  Cent.  L.  J.  13,  per  Johnson,  Circuit  Judge. 

9' Abranches  v.  Schell,  4  Blatclif.  256;  Turton  v.  U.  P.  K.  K.  Co.,  3 
Dillon,  366. 

9S  Eailway  Co.  v.  Ramsey,  22  Wall.  328.  where  the  requisites,  function 
and  effect  of  the  petition  for  removal  are  tersely  stated  by  the  Chief 
Justice.     Amory  v.  Amory,  36  N.  Y.  Sup.  Ct.  Hep.  520. 

99Pechner  v.  Phoenix  Ins.  Co.,  IST.  Y.  Court  of  Appeals,  May,  1875;  s. 
C,  6  Lans.  411 ;  Holden  v.  Putnam  Fire  Ins.  Co.,  46  jST.  Y.  1 ;  Indianapo- 
lis etc.  R.  R.  Co.  V.  Risley,  50  Ind.  60;  Sa\ings  Bank  v.  Benton,  2  Mete. 
(Ky.)  240;  People  v.  Superior  Court,  34  111.  356;  Tapley  v.  Martin,  116 
Mass.  275  (1874). 

100  Johnson  v.  Monell.  1  Woohv.  390;  McGinnity  v.  White,  3  DiUon, 
350. 


64  REMOVAL    or    CAUSES. 

in  his  petition  for  removal  that  the  plaintiff,  when  the  suit 
in  the  State  court  was  commenced,  was  and  still  is  a  citizen 
of  the  state  in  which  the  suit  is  Iji'ought,  etc.,  etc. 

Where  it  is  sought  to  remove  a  suit  on  the  ground  that 
it  is  one  "  arising  under  the  Constitution,  or  laws  or  treaties 
of  the  United  States,"  (Act  of  March  3,1875,  Sec.  2),  it 
should  appear  from  the  pleadings  or  the  petition  for  the  re- 
moval, or  both,  that  the  case  is  one  of  this  character. ^"^  If 
this  does  not  appear  from  the  pleadings,  that  is,  from  the 
averments  of  facts  therein  or  the  nature  of  the  case  made 
thereby,  then  it  must  be  made  to  appear  by  the  petition  for 
the  removal  ;  and  the  Circuit  Judge  for  the  Kinth  Circuit,  m 
a  recent  opinion  where  the  point  is  carefully  examined,  has 
reached  the  conclusion,  and  enforced  it  by  very  persuasive 
arguments  arising  from  the  delay,  inconvenience  and  abuse 
which  would  follow  from  a  different  practice,  that  the  peti- 
tion for  the  removal  must  state  the  facts  (unless  they  ap- 
pear in  the  pleadings)  which  show  the  case  to  be  one  of 
Federal  cognizance,  and  that  it  is  not  sufficient  to  state 
generally  that  the  case  is  one  arising  under  the  Constitution 
or  Laws  of  the  United  States. ^''- 

iw  Construction  of  this  clause  in  act  of  1875.     See  cmte,  sec.  8. 

i02Trafton  v.  Nougues,13  Pacific  Law  Rep.,  40;  s.  C.  4  Cent.  L.  J.  228. 
After  stating  the  delay  and  obstruction  to  the  administration  of  justice, 
which  would  result  from  allowing  the  petitioner  for  the  removal  to  effect 
it  on  his  mere  statement  that  the  case  was  one  arising  under  the  Consti- 
tution or  Laws  of  the  United  States,— the  duty  of  the  Federal  court  to 
remand  the  cause  at  any  stage  when  its  non-federal  character  appears — 
the  territorial  extent  of  the  Federal  jurisdiction— the  increased  cost  of 
litigation  in  the  Federal  courts— the  abuse  of  the  right  by  unscrupulous 
persons,  to  obtain  delay  or  to  harrass  their  adveisarj-, — Mr.  Circuit  Judge 
Sawj-er  concludes  his  opinion,  in  the  case  just  cited,  as  follows:  "In 
view  of  these,  in  my  judgment,  weighty  considerations,  therefore,  I 
think  it  of  the  highest  importance  to  the  riglits  of  honest  litigants,  and 
to  the  due  and  speedy  administration  of  justice,  that  a  petition  for 
transfer  should  state  the  exact  facts,  and  distinctly  point  out  what  the 
question  is,  and  how  and  where  it  will  arise,  which  gives  jurisdiction  to 
the  court,  so  that  the  court  can  determine  for  itself  from  the  facts, 
whether  the  suit  does  really  and  substantially  involve  a  dispute  or  con- 
troversy within  its  jurisdiction.  Whenever,  therefore,  the  record  fails 
to  distinctly  show  such  facts  in  a  case  transferred  to  this  court,  it  will  be 


REMOVAL    OF    CAUSES.  65 

Surety — Bond. — Under  section  639  of  the  Revised  Stat- 
utes, good  and  sufficient  surety  is  to  be  oifered  in  the  State 
<50urt,  at  the  time  of  filing  the  petition  for  the  removal,  for 
the  petitioner's  "  entering  in  the  Circuit  court  on  the 
first  day  of  its  next  session  copies  of  the  process,"  etc.  This 
is  substantially  the  requirement  in  this  regard  of  the  act  of 
March  3,  1875,  (sec.  3),  except  that  the  surety  is  to  be  given 
by  a  "  bond  "  which  is  conditioned,  not  only  for  the  entering 
of  a  copy  of  the  record  of  the  State  court  in  the  suit,  but  for 
''paying  all  costs  that  maybe  awarded  by  said  Circuit  court,  if 
said  court  shall  hold  that  such  suit  was  wrongfully  or  improp- 
erly removed  thereto."  But  if  the  Circuit  court  should  hold 
that  the  suit  was  removable,  it  would  not,  probably,  dismiss 
or  remand  it,  because  the  bond  did  not  contain  this  condition 
as  to  costs,  or  was  otherwise  informal.^*^^     This  section  has 


returned  to  the  State  court,  and  under  the  authority  given  by  section  5, 
at  the  cost  of  tlie  party  transferring  it.  If  I  am  wrong  in  my  construc- 
tion of  the  act  and  the  recent  decisions  of  the  Supreme  court,  the 
statute,  section  5,  happilj'^  affords  a  speedy  remedy  by  writ  of  en-or, 
upon  which  tliis  decision  and  the  order  remanding  the  case  may  be  re- 
viewed AAitliout  waiting  for  a  trial,  and  the  question  may  as  well  be  set 
at  rest  in  this  case  as  in  any  other.  It  is  of  the  utmost  importance  that 
a  final  decision  of  the  question  be  had  as  soon  as  possible.  If  counsel 
so  desire,  I  will  order  the  clerk  to  delay  returning  the  case  till  they  have 
an  opportunity  to  sue  out  and  perfect  a  writ  of  error." 

it>3 Section  5  of  the  act  of  March  3.  1875.  The  defendants,  under  the 
act  of  1789,  must  give  several,  or  joint  and  several  bonds,  and  not  joint 
bonds, — so  held  by  Potter.  J.,  in  Hazard  v.  Durant,  9  K.  I.  602;  but 
quaere  ? 

A  case  was  remanded  by  Gresham.  J.,  because  the  bond  did  not  com- 
ply with  the  act  of  1867.  the  penal  sum  being  left  blank,  and  because  it 
did  not  contain  the  conditions  required  by  the  act  of  1875.  Burdeck  v. 
Hale,  8  Ch.  L.  N.,  192  (1876). 

Where  the  party  seeking  a  removal  presents  a  bond  apparently  ample, 
the  State  court  (assuming  that  that  court  may  insist  upon  ••  a  good  and 
sufficient  bond)  cannot  arbitrarily  refuse  to  receive  the  bond,  and  refuse 
to  remove  the  case  without  giving  the  party  an  opportunity  to  correct 
the  bond  or  make  it  ample.  In  an  action  where  the  claim  was  less  than 
^600,  and  where  a  bond  for  $2000,  in  due  form,  with  two  sureties  who 
justified  in  the  sum  of  $4000  each,  was  presented,  which  the  court  re- 
fused to  accept,  without  stating  any  reasons,  the  appellate  court  re- 
versed the  judgment,  and  held  that  it  could  not  assume,  under  the  cir- 
5 


66  REMOVAL    OF    CAUSES. 

been  construed  by  the  learned  Circuit  Judge  of  the  7th  Cir- 
cuit, who  holds  that  "  it  did  not  intend  that  the  suit  should 
be  dismissed  or  remanded  on  account  of  irregularities,  pro- 
vided it  satisfactorily  appears  that  the  Circuit  court  has 
jurisdiction  of  the  case."^**^  But  if  the  removal  was  not 
applied  for  in  time,  this  is  not  treated  as  an  unimportant 
irregularity,  and  the  uniform  practice  is  to  remand  the  case. 
This  objection  must,  however,  be  made  seasonably,  or  it  will 
be  deemed  waived. ^^'^ 


SECTION  XV. 

EFFECT    OF    PETITION  AND  BOND    FOR  REMOVAL  ON  THE  JURIS- 
DICTION OF  THE  STATE  COURT. 

The  removal  acts  provide  that,  upon  the  filing  of  the 
proper  petition  and  the  ofier  of  good  and  sufficient  surety  or 
bond,  "  it  shall  be  the  duty  of  the  State  court  to  accept 
the  surety,"  [under  act  of  March  3,  1875,  "to  accept 
said  petition  and  bond  "  ]  "  and  to  proceed  no  further  in 
the  suit,"  [under  the  act  of  1866  "  no  farther  in  the  cause"] 
"  against  the  petitioner  for  removal.  "^""^  If  the  case  be  within 
the  act  of  Congress,  and  the  petition  is  in  due  form,  accom- 
panied with  the  offer  of  the  required  surety  or  bond,  the 
statute  is  that  the  State  court  must  accept  the  surety  or  the 

cumstances,  that  the  lower  court  refused  the  bond,  because  not  satisfied 
with  the  sureties.     Taylor  v.  Shaw,  54  N.  Y.  (Ct.  of  Appeals),  75  (1873.) 

104  Osgood  V.  Chicago,  etc.,  E.  K.  Co.,  7  Ch.  Legal  News,  241;  s.  c.  2 
Cent.  L.  J.  275,  and,  on  re-argunient,  2  Cent.  L.  J.  283.  See,  also,  Par- 
ker V.  Overman,  18  How.  137,  141 ;  Infra,  sec.  15. 

105  French  v.  Hay,  22  Wall.  244;  Supra,  sec.  13. 

106 Rev.  Stats.,  sec.  639.  It  is  doubtful  whether  parties  can  remove  a 
cause  by  a  stipulation  of  the  jurisdictional  facts.  At  all  events  the  prac- 
tice should  not  be  encouraged ;  and  where  a  minor  was  a  party,  it  was 
held  he  was  incapable  of  consenting  to  the  removal,  and  the  cause  was 
remanded.  Kingsbuiy  v.  Kingsbury,  3  Bissell,  00  (1871),  Da\is,  Druni- 
mond  and  Blodgett,  JJ.,  concurring. 


REMOVAL    OF    CAUSES.  67 

petition  and  bond,  and  proceed  no  further  in  the  case. 
Under  such  circumstances  the  State  court  has  no  power  to 
refuse  the  removal,  and  can  do  nothing  to  afiect  the  right, 
and  its  rightful  jurisdiction  ceases  eo  instanti;  no  order  for 
the  removal  is  necessary,  and  every  subsequent  exercise  of 
jurisdiction  by  the  State  court,  including  its  judgment,  if 
one  is  rendered,  is  erroneous. ^"^^    And  if  the  right  of  removal 

io7Fisk  V.  Union  Pacific  Kaib-oad  Co.,  6  BlatcM.  362;  s.  c,  ib.  243, 
299;  Hatcliv.  Chicago,  Eock  Island  &  Pacific  Kaili'oad  Co.,  6  i&.  105; 
Mattliews  v.  Lyall,  6  McLean,  13.  Tlie  petition  or  application  "for  re- 
moval is  ex  parte,  and  depends  upon  the  papers  on  which  it  is  founded,, 
and  if  they  are  regular  and  conform  to  the  requirements  of  the  statute,, 
the  [State]  court  has  no  discretion  "—and  the  adverse  party  is  not  enti- 
tled to  notice  of  the  time  and  place  of  presenting  the  petition.  Fisk  v.. 
Union  Pacific  Railroad  Co.  (Nelson,  J.),  8  Blatchf.  243,  247  (1871). 

"  In  cases  where  the  proceedings  are  in  conformity  mth  the  act,  the 
removal  is  imperative,  both  upon  the  State  and  Circuit  court;  and  if  the 
facts  [upon  which  the  removal  is  based]  are  seriously  contested,  it  must 
he  done  in  a  formal  manner,  by  pleadings  and  proofs,  in  the  latter  court. 
The  question  of  jurisdiction  [in  such  a  case]  belongs  to  the  Federal  court, 
and  must  be  heard  and  determined  there."'  Nelson,  J.,  in  Dennistoun 
V.  Draper,  5  Blatchf.  336,  338  (1866). 

No  order  of  removal  necessary.  Hatch  v.  C,  R.  I.  &  P.  K.  R.  Co.,  6 
Blatchf.  105  (1868) . 

Petition  for  removal  was  founded  on  the  act  of  1867.  It  did  not  show 
a  right  under  this  act,  but  did  state  a  case  mthin  the  act  of  1866,  and  it 
was  held  sufficient  to  require  a  removal  so  far  as  authorized  by  the  last- 
named  act.     Dart  v.  Walker,  4  Daly  (N.  Y.),  188  (1871). 

"  Where  a  suit  is  legally  removed,"  says  Gray,  C.  J.,  "  into  the  Circuit 
court  of  the  United  States,  the  jurisdiction  of  the  State  com-ts  over  it 
ceases,  and  the  suit  is  thenceforth  to  proceed  to  trial,  judgment  and  exe- 
cution in  the  Federal  courts,  and  can  not  be  remanded  to  the  State  courts 
for  any  purpose.  Kanouse  v.  Martin,  15  How.  198;  Ins.  Co.  v.  Dunn,  19 
Wall.  214;  Mahone  v.  Manchester  etc.  R.  R.  Co.,  Ill  Mass.  72.  Such  re- 
moval of  a  case  from  the  State  to  the  Federal  courts  for  trial  does  not 
change  the  nature  of  the  issue  to  be  tried  or  the  judgment  to  be  rendered. 
West  V.  Aurora,  6  Wall.  139;  Partridge  v.  Ins.  Co.,  15  Wall.  573."  Du 
Vivier  v.  Hopkins,  116  Mass.  125, 128. 

In  the  text  we  use  the  phrase  "  the  rightful  jm-isdiction  ceases  eo  in- 
stanti,'''' and  a  subsequent  judgment  of  the  State  com-t  "is  en-oneous,"— 
we  do  not  say  null  and  void.  Such  a  judgment  is  perhaps  valid,  unless 
reversed  or  set  aside ;  but  in  many  of  the  cases  every  subsequent  exercise 
of  jurisdiction  is  said  to  be  null  and  void,  and  eveiy  step  coram  nonjudice. 
How  far  the  subsequent  proceedings  in  the  State  com-t  have  any  validity, 
if  a  proper  application  for  removal  be  refused,  see  Herryford  v.  ^i:tna 


68  REMOVAL    OF    CAUSES. 

has  once  become  perfect,  it  can  not  be  taken  away  by  su]> 
sequent  amendment  in  the  State  court  or  Federal  court,  or 
by  a  release  of  part  of  the  debt  or  damages  claimed,  or 
otherwise.^''® 

Ins.  Co.,  42  Mo.  151,  153,  where  it  is  said  "  they  are  coram  non  judice  ;''"' 
S.  P.  Akerly  v.  Vilas,  1  Abb.  U.  S.  284;  s.  C,  2  isissell,  110;  Fiskv.  Union 
Pacific  K.  R.  Co.,  6  Blatchf.  362;  s.  c,  8  ih.  243,  299;  Stevens  v.  Phoenix 
Ins.  Co.,  41  N.  Y.  149;  and  compare  with  Kanonse  v.  Martin,  15  How. 
198;  Gordon  v.  Longest,  16  Pet.  97;  Ins.  Co.  v.  Dunn,  19  Wall.  214; 
French  v.  Hay,  22  Wall.  250;  Amory  v.  Amory,  36  N.  Y.  Superior  Ct.  R. 
520;  Bell  v.  Dix,  49  N.  Y.  232;  Stanley  v.  Ch..  R.  I.  &  P.  R.  R.  Co.  (Sup. 
Ct.  of  Mo.),  3  Cent.  L.  J.  430  (1876)  ;  Hadley  v.  Duulap,  10  Ohio  St.  1,  8, 
where  the  matter  is  discussed  by  Scott,  J. ;  DuVivier  v.  Hopkins,  116 
Mass.  125,  126. 

The  doctrine  of  the  text  to  the  effect  that,  if  the  petition  for  the  re- 
moval presents  a  case  within  the  removal  acts,  and  is  made  in  due  time 
and  accompanied  with  the  proper  surety,  no  order  for  the  removal  is 
necessary,  is  very  strongly  combated  by  Chancellor  Cooper  in  the 
Southern  Law  Review  for  April,  1877.  This  learned  writer  contends 
that  under  such  circumstances  the  jurisdiction  of  the  State  court  contin- 
ues, "  until  it  has  finally  parted  with  it  by  the  necessary  order."  and  i)er 
consequence,  that  the  Circuit  court  can  in  no  case  acquire  jurisdiction, 
unless  the  State  court  has  ordered  the  removal.  No  authoritj-  is  cited 
for  this  position,  except  the  case  of  the  Railway  Co.  v.  Ramsey,  22  Wall. 
328,  which  it  is  a  mistake  to  suppose  decided  any  such  proposition ;  and 
the  Chief  Justice,  in  the  language  referred  to,  probably  had  no  such 
thought  in  his  mind.  The  doctrine  that  an  order  of  removal  in  such  a 
case  is  not  necessary  to  the  jurisdiction  of  the  Circuit  court  is  imiversally 
accepted  in  those  courts,  and  is  constantly  acted  on.  The  acts  of  Con- 
gress speak  of  no  order  of  removal  being  necessarj^;  some  of  the  acts 
distinctly  provide  for  the  cases  proceeding  in  the  Federal  court,  notwith- 
standing the  State  court  or  clerk  maj^  refuse  to  send  or  furnish  copies  of 
the  record ;  and  the  act  of  1875  (sec.  7)  provides  for  a  writ  of  certiorari 
to  enforce  not  only  the  removal  of  a  cause  which  the  State  court  has  or- 
dered to  be  removed,  but  of  any  cause  "  removable  under  the  act,"  where 
the  parties  entitled  to  a  removal  "have  complied  with  the  provisions  of 
this  act  for  the  removal  of  the  same."  It  would  contravene  the  plain 
pm-pose  of  this  provision  to  hold  that  a  certiorari  could  rightfully  issue 
only  in  cases  where  the  State  court  had  ordered  the  removal,  or  that  it 
would  be  an  answer  to  the  writ  for  the  State  court  to  return  that  it  had 
refused  to  order  the  removal. 

losKanouse  v.  Martin  (amendment),  15  How.  198;  s.  C.  1  Blatchf.  149; 
Ladd  V.  Tudor.  3  Woodb.  &  Minot,  325;  Muns  v.  Dupont,  2  Wash.  C.  C. 
463:  Akerly  v.  Vilas,  1  Abb.  U.  S.  284;  S.  C,  2  Bissell,  110;  Hatch  v. 
Rock  Island  etc.  R.  R.  Co.,  6  Blatchf.  105;  Fisk  v.  Union  Pacific  R.  R. 
Co.,  G  ib.  362;  s.  c.  S  ib.   243:   Roberts  v.  Nelson  (amount),  8  ib.  74; 


REMOVAL    OF    CAUSES.  6J> 

If  the  petition  in  connection  with  the  pleadings  does  not 
show  that  the  case  is  removable,  the  jnrisdiction  of  the  State 
court  is  not  ousted,  and  its  sul^sequent  proceedings,  if  it 
refused  to  order  the  removal,  would  not,  it  is  supposed,  be 
void  or  erroneous.^*' 

And  the  same  principle  would  apply,  probably,  if  no  secu- 
rity or  bond  whatever  was  offered  and  no  removal  ordered, 
since  in  that  event  the  prescribed  conditions  for  the  removal 
have  not  been  complied  with  ;  but  it  is  doubtful,  especially 
under  the  act  of  1875,  whether  it  belongs  to  the  State  court 
to  judge  of  the  sufficiency  of  the  surety  offered,  and  to  refuse 
a  removal  because  the  surety  or  bond  is  not  sufficient,  and 
exercise  jurisdiction  subsequently  on  that  ground  alone. ^^° 

In  the  case  of  Osgood  v.  Chicago  etc.  R.  R.  Co.,"^  the 
petition  and  bond  for  the  removal  of  the  cause  were  filed  in 
the  vacation  of  the  State   court  with  the  clerk,  and  it  was 

Gordon  V.  Longest,  16  Pet.  07;  Matthews  v.  Lyall  (as  to  right  to  dis- 
miss), G  McLean,  13;  Wright  v.  Wells.  Pet.  C.  C.  220;  Stanley  v.  C.  R. 
L  &  P.  R.  R.  Co.,  3  Cent.  L.  J.  430. 

109  Gordon  v.  Longest,  16  Pet.  97;  Ins.  Co.  v.  Dmm,  19  Wall.  214; 
Kanouse  v.  Martin,  14  How.  23;  s.  C,  15  How.  198;  Stevens  v.  Phoenix 
Lis.  Co.,  41  N.  Y.  149;  Holden  v.  Putnam  Fire  Lis.  Co.,  46  N.  Y.  1 ;  Sav- 
ings Bank  v.  Benton,  2  Mete.  (Ky.)  240. 

uoSee  nisi  prius  opinion  of  Morton,  J.,  in  Bank  v.  King  Wrougiit  Iron 
Bridge  Co.,  2  Cent.  L.  J.  505,  denying  Osgood  v.  Chicago  etc.  R.  R.  Co., 
infra ;  s.  c.  in  Circuit  court  U.  S.,  2  Cent.  L.  J.  616.  See  Ih..  679.  730.  The 
ruling  of  Drummond,  J.,  in  Osgood's  case,  approved  .Jones  v.  Amazon 
Ins.  Co.,  9  Ch.  Legal  Xews,  68,  dissented  from  in  Mayo  v.  Taylor,  8  Ch. 
Legal  News,  11.  See  also  dictum  of  the  Chief  .Justice  in  Railway  Co.  v. 
Ramsey,  22  Wall.32S,  that '  ^  if  upon  the  hearing  of  the  petition  it  is  sustained 
by  proof,  the  State  court  can  proceed  no  further  "^but  qucere,  whether 
the  State  court  can  hear  and  determine  whether  the  proofs  sustain  the 
petition. 

Mr.  Chancellor  Cooper,  in  the  Southern  Law  Review  for  April 
1877,  combats  the  doctrine  of  .Judge  Drummond  in  the  Osgood  Case  and 
the  other  cases  that  follow  it,  namely,  that  the  State  court  has  no  right 
to  pass  upon  the  sufficiency  of  the  bond.  The  point  is  by  no  means 
clear,  and  there  is  reason  (looking  at  the  object  of  the  bond  and  the 
language  of  the  act  of  Congress)  for  the  opinion,  that  it  was  contem- 
plated that  the  State  court  might  reject  a  bond  distinctly  on  the  ground 
that  it  was  not  sufficient;  but  its  action  in  this  regard  can  not  be  ad- 
mitted to  be  conclusive,  in  all  cases,  on  the  Federal  courts. 

1112  Cent.  L.  J.  275;  s.  c,  7  Ch.  Legal  News,  241. 


70  REMOVAL,   OF    CAUSES. 

held  that  this,  without  any  action  of  the  eourt  as  to  the  suffi- 
ciency of  the  petition  or  bond,  ipso  facto,  deprived  the  State 
court  of  jurisdiction — the  sufficiency  of  these  (under  the  act 
of  1875  )  being  for  the  Circuit  court.  Judge  Drummond  says  : 
"  It  is  true  that  under  the  statute  the  bond  must  be  good  and 
sufficient  security ;  but  it  does  not  declare  that  it  shall  be 
approved  by  the  judge.  It  requires  the  State  court  to  ac- 
cept the  jDetition  and  bond,  and  proceed  no  further  in  the 
case.^^  The  fifth  section  of  the  act  of  March  3,  1875,  tends 
to  confirm  the  ^dew  that  the  State  court  is  not  authorized 
to  make  a  judicial  inquiry  into  and  decision  on  the  sufficiency 
of  the  bond.  Its  determination,  however,  that  a  sufficient 
petition  is  not  sufficient,  can  not  deprive  the  Federal  court 
of  jurisdiction.  So  its  determination  that  an  insufficient 
petition  is  sufficient,  while  it  is  not  immaterial,  especially  if 
accomjDanied  with  an  order  for  removal,  will  not  conclude 
that  question,  and  it  will  be  the  duty  of  the  Federal  court, 
on  motion,  to  remand  the  cause. ^^'^ 


SECTION  XVI. 

EFFECT  ON  THE  JURISDICTION  OF  THE  FEDERAL  COURT. 

"  Upon  the  copy  of  the  record  of  the  suit  being  entei'ed 
as  aforesaid  in  the  Circuit  court  of  the  United  States,"  the 
provision  is,  "  that  the  cause  shall  then  proceed  in  the  same 
manner  as  if  it  had  been  originally  commenced  in  the  said 
Circuit  court."  "And  the  copies  of  the  pleadings  shall 
have  the  same  force  and  efiect,  in  every  respect  and  for  every 
purpose,  as  the  original  pleadings  would  have  had  by  the 
laws  and  practice  of  the  courts  of  the  State,  if  the  cause  had 
remained  in  the  State  court. "^* 

112  See  2  Cent.  .L.  J.  616. 

113  Uitetiqui  v.  D'Arcj%  9  Pet.  692. 

ii^Kev.  Stats.,  sec.  639.     And  see  act  March  3.  1875,  sees.  3,  6. 


REMOVAL    OF    CAUSES.  71 

No  new  2jleadings  are  in  general  necessary  in  the  cause 
after  its  removal  to  the  Federal  court, "'^  though  it  may  often 
be  advisable,  especially  in  equity  cases,  to  file  new  plead- 
ings. We  have  before  referred  to  this  subject."'^  The 
practice  after  removal  is  to  be  the  same,  as  if  the  cause  had 
been  originally  brought  in  the  Federal  court,  including  the 
power  to  allow  amendments. ^^'  Amendinents  in  respect  to 
jurisdictional  facts  have  sometimes  been  allowed. ^^^ 

The  jurisdiction  of  the  Circuit  court  does  not,  probably, 
attach  until  the  record  of  the  State  court  is  entered  therein. 
If  it  be  entered  before  the  time,  it  has  been  made  a  question 
whether  it  will  then  attach.  For  some  purposes  it  would 
seem  that  it  might ;  as,  for  example,  if  it  became  necessary 
meanwhile  to  issue  an  injunction  or  appoint  a  receiver 
(which  should  be  done,  however,  only  upon  notice),  in  or- 
der to  protect  the  rights  of  the  parties  or  to  preserve  the 
property  in  litigation. 

By  express  provision  of  existing  statutes,  attachments  of 
property  hold,  bonds  of  indemnity  remain  valid,  and  writs 
of  injunction  continue  in  force  notwithstanding  the  re- 
us Dart  v.  McKinney  (act  of  1866),  9  Blatchf.  359  (1872),  Blatchford, 
J.  Supra,  sec.  9  and  cases  cited.  In  removals  under  the  Judiciary  Act, 
the  defendant  is  not  in  default  for  not  pleading  in  the  State  court,  and 
he  may  plead  in  the  Circuit  court,  Webster  v.  Crothers,  1  Dillon  C.  C. 
301  (1870). 

U6  Swpra,  see.  9  and  cases  there  cited. 

117  Suydam  v.  Ewing,  2  Blatchf.  359  (1852),  Betts,  J.;  Akerly  v.  Vilas, 
5  Ch.  Legal  News,  73;  supra,  sec.  9  and  cases  cited. 

lis  In  the  original  petition  the  plaintiff,  by  mistake  of  his  attorney, 
described  himself  as  a  citizen  of  the  state  where  the  suit  Avas  brought ;  he 
obtained  a  removal  of  the  case  on  the  ground  that  he  was  a  citizen  of 
another  state,  and  in  the  Federal  court  he  was  permitted  by  Mr.  -Justice 
Bradley  to  amend  his  petition  and  state  his  true  citizenship,  both  then, 
and  when  the  suit  was  commenced,  and  to  make  new  parties  defendant 
with  respect  to  matters  properly  pertaining  to  the  original  cause  of  ac- 
tion. Barclay  v.  Levee  Commissioners,  1  Woods  C.  C.  254.  In  Hodgson 
V.  Bowerbank,5  Cranch,  303,  the  court  having  decided  that  the  objection 
to  the  jurisdiction  (the  defendant  being  described  in  the  record  as  "late 
of  the  District  of  Maryland."  instead  of  a  citizen  of  Maryland)  was 
fatal,  the  ''record  was  afterwards  amended  by  consent."  Parker  v. 
Overman,  18  How.  137,  cited  infra,  sec.  17,  note. 


72  REMOVAL    OF    CAUSES. 

moval,  until  dissolved  or  modified  by  the  Circuit  court. ^^* 
This  provision  was,  doubtless,  enacted  to  obviate  a  dif- 
ferent judicial  construction  which  has  been  placed  upon 
previous  removal  acts.^-*^ 


SECTION   XVII. 

EEMANDING  OF  CAUSE  TO  THE  STATE  COURT. 

If  the  petition  for  the  removal  and  the  copy  of  the 
pleadings  or  record  in  the  State  court,  taken  together,  do  not 
show  that  the  case  was  removable  under  the  legislation  of 
Congress  ;  or  if  they  show  that  the  removal  was  not  applied 
for  in  time  ;  or  that  any  other  substantial  condition  of  the 
right  of  removal,  such  as  value,  has  not  been  met  or  com- 
plied with,  but  the  removal  has,  nevertheless,  been  ordered, 
the  other  party  may  move  to  remand  the  cause  to  the  State 
court,  and  it  ought  to  be  remanded  accordingly.     This  was 

119 Rev.  Stats.,  sec.  646;  Act  March  3,  1875,  sec.  4. 

i2f'See  Xew  England  Screw  Co.  v.  Bliven,  3  Blatchf.  240,  but  qiKxre? 
Barney  v.  Globe  Bank  {attachment  holds  the  property  after  removal  under 
the  .Judiciaiy  Act.  sec.  12),  5  Blatchf.  107  (1862). 

Attachment — Motion  to  Dissolve. — A  motion  to  dissolve  an  attachment 
when  authorized  by  the  local  laws,  maybe  made  in  the  Circuit  comt  after 
the  removal ;  and  in  the  discretion  of  the  court  it  may  be  renewed,  al- 
though it  was  once  argued  and  denied  in  the  State  court.  Garden  City 
Mauuf.  Co.  V.  Smith,  1  Dillon  C.  C.  305  (1870).  As  to  custody  and  dis- 
position of  propeity  attached.  Dennistoun  v.  Draper,  5  Blatchf.  336. 

Injunction — Motion  to  Dissolve. — Under  the  act  of  July  13,  1866  (14 
Stats,  at  Large,  171,  sec.  67),  Drummond,  Circuit  Judge,  following  the 
decision  of  McLean,  J.,  in  McLeod  v.  Duncan,  5  McLean,  342,  held  that 
an  injunction  issued  by  the  State  court  was  ipso  facto  dissolved  by  the  re- 
moval of  the  cause  into  the  Federal  court — that  act  making  pro^^sion  that 
"  all  attachments  made,  and  all  bail  and  security  given  upon  such  suit  or 
prosecution,  shall  continue  in  force."  and  sajing  notliing  as  to  injunc- 
tions. See  Hatch  v.  Chicago,  R.  I.  &  P.  R.  R.  Co.,  6  Blatchf,  105.  hold- 
ing same  doctrine  as  to  cases  removed  under  sec.  12  of  the  Judiciary 
Act.  But  these  decisions  are  no  longer  applicable,  where  there  is  an  ex- 
press statute  provision,  that  injunctions  gi-anted  by  the  State  court  con- 
tinue in  force  after  the  removal  of  the  cause,  until  dissolved  or  modified 


REMOVAL    OF    CAUSES.  73 

the  uniform  practice  before  the  act  of  1875  ;  but  under  the 
5th  section  of  that  act,  while  it  is  clear  that  a  cause  ought 
to  be  remanded  which  is  not  removable,  or  in  which  the  right 
to  a  removal  has  been  waived  because  not  applied  for  in 
time,  and  the  like,  it  is  doubtful  whether,  if  the  record  wa& 
in  fact  filed  in  the  Federal  court  in  time,  defects  connected 
with  the  giving  of  the  surety  or  bond,  or  other  irregulari- 
ties which  have  not  worked  any  prejudice,  will  be  ground 
for  dismissing  or  remanding  the  case.^'-^ 

The  section  last  referred  to  makes  it  the  duty  of  the  Cir- 
cuit court  to  dismiss  or  remand  the  case  whenever  it  appears, 
to  its  satisfiiction,  that  the  "  suit  does  not  really  and  substan- 
tially involve  a  dispute  or  controversy  properly  within  the 
jurisdictiou  of  the  Circuit  court."  In  our  judgment  this 
is  the  test  of  Federal  jurisdiction,  and  the  one  which 
ought  to  be  applied  to  the  complex  and  diversified  cases 
which  will  arise  under  the  act  of  1875,  namely,  if  the  real 
and  substantial  controversy  is  one  between  citizens  of  dif- 
ferent states,  although  incidentally  and  collaterally  there 
may  be  a  controversy  between  some  parties  who  may  be 
citizens  of  the  same  state  ;  or  if  the  case  is  one  which  arises 
under  the  Constitution  or  Laws  of  the  United  States,  al- 
though not  wholly  depending  thereon  as  before  explained , 
the  case  is  one  of  Federal  cognizance  and  should  be  re- 
tained ;  otherwise,  dismissed  or  remanded. 

A  party  entitled  to  a  removal  may  estop  himself  to  apply 

by  the  Federal  coiu-t.  "Wlierean  injunction  has  been  allowed  by  the  State 
court  upon  a  full  hearing,  and  the  cause  is  afterwards  removed,— while  the 
Federal  court  may,  under  the  act  of  1866,  dissolve  the  injunction,  yet, 
where  the  motion  to  dissolve  is  upon  the  same  papers  on  which  the  writ  was 
granted  (this  being-  in  effect  an  application  for  re-argument  of  the 
motion  made  in  the  State  court) ,  leave  to  make  such  motion  should  fii'st 
be  applied  for  and  obtained,  before  it  can  be  made.  Carrington  v.  Flor- 
ida K.  K.  Co.,  9  Blatch.  468  (1872),  Benedict,  J. 

121  See  siipra,  sec.  9,  as  to  time  of  applying  for  removal.  When  the 
case  is  one  of  Federal  cognizance,  the  right  to  have  the  cause  remanded, 
because  of  defects  in  mode  of  removal,  etc..  may  be  waived.  But  there 
is  no  waiver  of  the  right,  where  the  case  is  not  really  and  substantially 
one  of  Federal  jurisdiction.    Price  v.  Sommers,  8  Ch.  Legal  News,  290. 


74  EEMOVAL    OF    CAUSES. 

for  it,^"  or,  having  applied,  may  waive  the  right  to  a  removal 
by  his  subsequent  conduct  in  the  State  court  ;^^  but  contest- 
ing the  case  in  the  State  court,  after  it  has  erroneously 
refused  to  grant  the  application  for  a  removal,  is  no  waiver 
of  the  party's  right. ^-^ 

Under  sec.  639  of  the  Revised  Statutes,  and  under  the 
act  of  1875,  the  defendant  must  give  surety  for  his  entering 
copies  of  the  record  on  ' '  the  first  day  of  the  next  session  ' ' 
of  the  Federal  court — the  latter  act  providing  further  (sec. 
7),  that  if  the  next  term  shall  commence  within  twenty 
days  after  the  application  for  removal,  the  party  shall  have 
twenty  days,  from  the  time  of  the  application,  to  file  in  the 
Federal  court  the  copy  of  the  record  and  enter  his  appear- 
ance therein.  If  this  condition  of  the  undertaking  and 
bond  is  not  complied  with,  the  obligors  would  doubtless 
be  liable  on  the  bond  ;  and  there  may  be  such  unexcused 
laches  in  the  filing  of  the  copy  of  the  record  of  the  State 
court,  as  where  Avithout  necessity  or  good  reason  a  term 
lapses,  or  the  other  party  is  prejudiced  by  the  dela}",  that 
the  Federal  court  will  for  this  reason  remand  the  case,  even 
though  it  be  one  of  Federal  cognizance.  Such  is  the 
practice  of  the  Federal  courts,  so  far  as  we  are  acquainted 
»        with  it.i-'^ 

122  Executing  bond  to  procui-e  discharge  from  a  -oTit  of  ne  exeat,  held  to 
estop,  hy  its  condition  "  to  abide  the  decree  of  the  State  court" — the  de- 
fendant -who  executed  it,  to  remove  the  cause  to  the  Federal  com-t.  Haz- 
ard V.  Durant  et  al.  (Potter,  J.),  9  Khode  Island,  602.  606  (1868). 

1"^ A  petition  and  bond  for  removal  were  filed  in  the  State  court: — no 
motion  was  made  or  entered,  nor  the  attention  of  the  court  called  to  the 
fact,  and  the  parties  nearly  a  j'ear  afterwards  went  to  trial  on  the  merits. 
On  appeal  the  court  held,  that  the  right  to  a  removal  could  he  vmived,  and 
under  the  circumstances  must  be  considered  waived ;  though  it  was  ad- 
mitted that  it  would  have  been  other\A-ise,  if  the  coiu-t  had  been  cogni- 
zant of  the  petition,  and  that  the  party  insisted  on  it,  and  had  nevertheless 
ordered  the  trial  to  proceed.  Home  Ins.  Co.  v.  Cui-tis  (Sup.  Ct.  Mich.), 
3  Cent.  L.  J.  27  (1875) . 

124  Insurance  Co.  v.  Dunn,  19  Wall.  214:  Gordon  v.  Longest,  16  Pet. 
98;  Kanouse  v.  Martin,  15  How.  198:  Stevens  v.  Phcenix  Ins.  Co.,  41 
N.  Y.  149;  Hadley  v.  Dimlap.  10  Ohio  St.  1. 

125  Supra,  sec.  14.   Time  of  filing  copies  of  papers,  "^liere  the  petition  for 


REMOVAL    OF    CAUSES.  75 

The  motion  to  reinand  must  be  based  upon  the  petition  for 
removal  and  the  record  as  it  is  sent  up  from  the  State  court. 
If  the  petition,  in  connection  with  the  record,  is  sufficient 
on  its  face,  but  states  as  ground  of  removal  facts  which 
are  not  true,  as  for  example,  in  regard  to  citizenship,  or 
value,  where  the  value  does  not  appear  in  the  pleadings, 
issue  may  be  taken  thereon  in  the  Circuit  court  by  a  plea  in 
the  nature  of.  a  plea  in  abatement  -^'-^  but  such  an  inquiry 
can  not  be  gone  into  in  the  State  court. ^'-^ 

Where  the  State  court  has  ordered  the  removal  improp- 

removal  was  filed  in  February,  1874,  and  the  next  term  of  the  Federal 
court  was  in  April,  1874,  and  copies  of  the  proper  papers  were  not  filed 
until  August,  1875,  the  delay  was  such  that  the  Federal  court  remanded 
the  case,  and  held  that  the  delay  was  not  excused  by  the  action  of  the  State 
court  in  denying  the  petition,  and  the  petitioner's  action  in  the  mean- 
time in  securing,  by  appeal  to  the  state  appellate  tribunal,  a  reversal  of  the 
order  denying  the  removal.  Clippiuger  v.  Mo.  Valley  Life  Ins.  Co. 
(North.  Dist.  Ohio),  8  Chicago  Legal  Xews,  11.5  (1875);  but  qucere, 
whether  under  the  circumstances  the  delay  was  not  sufficiently  excused. 

126  Coal  Co.  V.  Blatchford,  11  Wall.  172;  Heath  v.  Austin.  12  ib.  320, 
*'  The  motion  to  remand  admits  the  facts  set  out  in  the  petition  for  re- 
moval, and  proceeds  upon  the  ground  that  under  the  state  of  facts  [pre- 
sented in  the  record]  the  case  was  improperly  removed,  and  this  court 
is  without  jurisdiction  over  it."  Buttner  v.  Miller,  1  Woods  C.  C.  620 
(1871).  When  motion  to  remand  is  proper,  and  when  not.  Heath  v. 
Austin,  12  Blatchf.  320;  Dennistoun  v.  Draper,  5  ib.  336;  GaMn  v. 
Boutwell,  9  ib.  470. 

If  the  case  is  not  one  of  Federal  cognizance,  it  must  be  dismissed  or  re- 
manded at  any  stage  when  the  fact  appears  or  is  duly  established. 
Dennistoun  v.  Draper,  5  Blatchf.  336  (1856),  Xelson,  .J.;  Pollard  v. 
Dwight,  4  Crauch,  421 ;  Wood  v.  Matthews,  2  Blatchf.  370. 

The  act  of  March  3,  1875,  section  5.  provides  that,  if  "  at  any  time  " 
after  the  removal  the  non-federal  character  of  the  ease  shall  appear, 
"  the  Circuit  coiu-t  shall  proceed  no  further  therein,  but  shall  dismiss  the 
suit  or  remand  it  to  the  court  from  which  it  was  removed,  as  justice 
may  require." 

i27Fisk  v.  Union  Pacific  R.  R.,  8  Blatchf.  243  (1871),  Nelson,  .J. ;  Stew- 
art V.  Mordecai,  40  Ga.  1.  It  is  settled  law  that  the  facts  stated  as  the 
ground  of  the  removal  can  not  be  contested  or  inquired  into  in  the  State 
court.     That  inquiry  belongs  exclusively  to  the  Federal  court. 

In  Knickerbocker  Life  Ins.  Co.  v.  Gorbach,,  70  Pa.  St.  150  (1871),  both 
parties  seemed  to  concede  the  right  of  the  State  court  to  determine 
whether  the  facts  stated  in  the  petition  for  removal  were  true,  and  that 
question  was  tried  and  decided  against  the  party  applying  for  the  re- 


76  REMOVAL    OF    CAUSES. 

erly,  the  Circuit  court  should  remand  the  siiit.^-^  If  the 
State  court  has  remitted  the  case,  though  erroneously,  its 
jurisdiction  is  at  an  end  until  it  is  restored  by  the  action  of 
the  Federal  courts.^'"  If  the  Circuit  court  erroneously  re- 
fuses to  remand  such  a  case,  the  proper  remedy  of  the  party 
is  not  by  proceeding  in  the  State  court  at  the  same  time  the 
cause  is  in  the  Circuit  court,  but  is  alone  in  the  Federal 
court ;  the  action  of  the  Circuit  court  in  remanding,  or  re- 
fusing to  remand,  a  cause  being  reviewable  on  error  or  appeal 
by  the  Supreme  Court. ^^^' 

moval,  and  the  decision  reversed  hy  the  Supreme  Court  of  tlie  State; 
but  this  practice  is  in  direct  conflict  with  the  acts  of  Congress  in  this 
behalf. 

Burden  of  proof  KS,  to  jurisdictional  facts,  where  contest  is  made  in  the 
Federal  court  after  the  removal.     Heath  v.  Austin,  12  Blatchf.  320. 

128  Act  March  3,  1875,  sec.  5,  referred  to  supra.  Although  the  State 
court  has  ordered  the  removal,  yet  if  such  order  was  improperly  made, 
the  Circuit  court  should  remand  the  cause,  as  it  must  determine  for  itself 
the  question  of  jurisdiction.  Field  v.  Lownsdale',  1  Deady,  288,  Deady, 
J.  Where  the  Federal  court  orders  a  cause  remanded  to  the  State  court, 
the  Supreme  Court  of  the  State  will  not  issue  a  writ  of  mandamus  or 
other  process  to  restrain  the  State  court  from  proceeding  with  the  cause, 
until  the  party  who  attempted  to  transfer  the  cause  to  the  Federal  court 
can  invoke  the  revisory  power  of  the  Supreme  Court  of  the  United  States- 
to  compel  such  transfer.  E:c  parte  State  Ins.  Co.  of  Ala.,  50  Ala.  464  (1874) . 

129  On  the  order  of  the  Circuit  court  remanding  a  cause  which  the  State 
court  had  previously  ordered  to  be  transferred,  the  jurisdiction  of  the 
latter  court  re-attaches,  and  it  may  proceed  therewith.  Thacher  v. 
McWilliams,  47  Ga.  306  (1872).  But  under  the  act  of  March  3,  1875 
(sec.  5).  such  an  order  of  the  Circuit  court  is  reviewable  by  the  Supreme 
Court  of  the  United  States  on  appeal  or  ^\Tit  of  error ;  and  if  the  order 
be  superseded,  a  question  may  arise  as  to  the  power  of  the  State  court 
pending  the  appeal  or  writ  of  ei-ror.  to  proceed  ^\ith  the  cause  under  or 
in  consequence  of  the  order  remanding  it. 

1301ns.  Co.  V.  Dunn,  19  Wall.  214,  223;  Gordon  v.  Longest,  16  Pet.  97; 
Act  March  3,  1875,  sec.  5;  Green  v.  Custard,  23  How.  484;  Fasnacht  v. 
Frank  (effect  of  appeal),  U.  S.  Sup.  Court,  Oct.  Term,  1874,  23  Wall.  416. 
See  2  Cent.  L.  J.  290. 

Where  in  a  suit  removed  into  the  Circuit  court  the  papers  wei-e  after- 
wards destroyed  by  fire,  and  the  parties  stipulated  in  writing  that  the  cause 
was  transfeiTed  in  arxordance  v-ith  the  statute  in  such  case  provided,  the 
Supreme  Court  \\ill  presume,  in  the  absence  of  proof  to  the  contrary,  that 
the  citizenship  requisite  to  give  jurisdiction  was  shown  in  some  proper 
manner,  though  it  did  not  appear  on  the  face  of  the  pleadings.     R.  R. 


REMOVAL    OF    CAUSES.  77 

Where  the  State  court  asserts  jurisdiction  after  a  proper 
application  for  removal,  the  question  of  jurisdiction  is  not 
waived  by  the  party  entitled  to  the  removal,  by  reason  of  his 
appearing  and  contesting  in  the  State  court  the  claim  or 
matter  in  dispute. ^'^^  If  in  such  case  the  judgment  of  the 
State  court  be  against  him  on  the  trial  or  hearing,  he  may 
appeal  to  the  highest  court  of  the  state  ;  and  if  the  decision 
below  is  there  affirmed,  he  may  sue  out  a  writ  of  error  from 
the  Supreme  Court  of  the  United  States  ;  and  if  the  record 
shows  that  the  removal  of  the  suit  was  improperly  denied, 
that  court  will  not  examine  into  the  merits  of  the  case  or 
generally  into  the  record,  but  will  reverse  the  judgment  of 
the  highest  court  of  the  state,  with  directions  to  reverse  the 
judgment  of  the  lower  State  court  and  to  order  a  transfer  of 
the  cause  from  that  court  to  the  Circuit  court  of  the  United 
States,  pursuant  to  the  petition  for  the  removal  originally 
filed  in  such  State  court. ^•^-    The  Circuit  court  has  the  power 

Co.  V.  Kamsey,  22  Wall.  322.  In  a  petition  for  removal  it  was  stated  that 
the  parties  '' resided"  in  such  and  such  states.  The  Supreme  Court 
said :  '' '  Citizenship  '  and  '  residence  '  are  not  synonymous  terms;  but  as 
the  record  [in  the  Circuit  court]  was  afterwards  so  amended  as  to  show 
conclusively  the  citizenship  of  the  parties,  the  court  below  had,  and  this 
court  have,  undoubted  jurisdiction  of  the  case."  Parker  v.  Overman,  18 
How.  137,  141.     Amendments,  see  stipra,  sec.  16  and  cases  cited. 

An  averment,  that  the  party  defendant  is  a  citizen  of  the  Southern 
Distriet  of  Alabama,  is  a  sufficient  aA'ennent  that  he  is  a  citizen  of  Ala- 
bama.    Berlin  v.  Jones.  I  Woods  C.  C.  638. 

1-31  Ins.  Co.  V.  Dunn,  19  Wall.  214;  Gordon  v.  Longest,  16  Pet.  98; 
Kanouse  v.  Martin,  15  How.  198;  Stevens  v.  Pha?nix  Ins.  Co..  41  N.  Y. 
149;  Hadley  v.  Dunlap,  10  Ohio  St.  1;  Stanley  v.  C,  K.  I.  &  P.  K.  R. 
Co.,  3  Cent.  L.  J.  430. 

132  Gaines  v.  Fuentes,  Sup.  Court  U.  S.  Oct.  Term,  1875,  2  Otto,  10;  s. 
€.,  3  Cent.  L.  J.  371,  and  see  cases  last  cited.  In  the  Atlas  Ins.  Co.  v. 
Byrus,  45  Ind.  133  (1873),  the  State  court  of  original  jurisdiction  improp- 
erly refused  to  transfer  the  cause  to  the  Federal  court,  and  rendered 
judgment  against  the  party  entitled  to  the  removal;— on  appeal,  the  Su- 
preme Court  of  the  State  reversed  the  judgment  and  remanded  the  cause 
to  the  court  below,  with  directions  to  sustain  the  application  to  remove 
the  cause  to  the  Circuit  court  of  the  United  States. 

The  State  courts  have  generally  held,  that  an  appeal  lies  to  the  appellate 
court  of  the  state  from  an  order  for  the  removal  of  a  cause  to  a  Fed- 
eral court,  or  from  an  order  referring  such  removal.     State  v.  The 


78  REMOVAL    or    CAUSES. 

to  protect  its  suitors  by  injunction  against  a  judgment  in  the 

Judge,  23  La.  An.  29  (1871);  Bryant  v.  Rich,  106  Mass.  180;  Crane  v. 
Reeder,  28  Mich.  527  (1874)  ;  Whiton  v.  Chicago  &  N.  W.  R.  R.  Co.,  25 
Wis.  424;  s.  C,  13  Wall.  270;  Darst  v.  Bates,  51  El.  439.  See  opinion  of 
Gray,  C.  J.,  inMahone  v.Mancliester  etc.  R.  R.  Co.,  Ill  Mass.  74;  Hough  v. 
West.  Transp.  Co.,1  Bissell,425.  But  the  courts  In  XewYorlc  have  decided 
othei-\\ise.  Stevens  v.  Phoenix  Ins.  Co.,  41  N.  Y.  149;  Bell  v.  Dix,  49 
N.  Y.  232.  See  on  this  subject  Ellerman  v.  New  Orleans  etc.  R.  R.  Co., 
2  Woods  C.  C.  120  (1875)  (Woods,  Circuit  Judge)  ;  Ins.  Co.  v.  Dunn,  19 
Wall  214;  Ins.  Co.  v.  Morse,  20  Wall.  445,  and  cases  cited  infra. 

But  whatever  may  be  the  true  view  on  this  point,  it  is  plain  that,  if  the 
case  is  removable,  and  the  application  is  in  due  form  and  in  time,  the  act 
of  Congress  gives  "  an  unqualified  and  unrestrained  right  to  a  removal," 
and  declares  that  the  State  court  shall  "  proceed  no  further  in  the  suit;" 
and  in  such  a  case  the  State  court,  it  seems  plain,  can  not,  after  such 
application,  allow  an  appeal  to  the  appellate  court  of  the  state,  and  ac- 
cept a  supersedeas  bond,  which  shall  have  the  effect  to  prevent  a  removal 
to  the  Federal  court  pending  such  appeal.  See  Akerly  v.  Vilas,  1 
Abb.  U.  S.  Rep.  284.  This  is  undoubtedly  the  law  under  the  act  of  1875, 
which  authorizes  the  Federal  court  to  issue  a  certiorari  to  the  State 
court,  to  which  it  would  not  be  sufficient  for  the  State  court  to  return 
that  an  appeal  had  been  taken  to  the  appellate  court  of  the  state.  El- 
lerman V.  New  Orleans  R.  R.  Co.,  (Woods,  Circuit  Judge),  2  Woods 
C.  C.  120  (1875) ;  Insurance  Co.  v.  Morse,  20  Wall.  445. 

If  a  removal  has  been  applied  for  and  denied,  and  the  party  persists  in 
proceeding  in  the  State  court,  Allen.  J.,  in  Bell  v.  Dix,  49  N.  Y.  232 
(1872),  conceding  that  the  question  of  jurisdiction  must  be  decided 
by  the  Federal  Circuit  Court,  said,  aryiiendo,  that  the  remedy  of  the 
party,  who  sought  the  removal  which  the  State  court  denied,  was  to  ap- 
ply to  the  Circuit  court  of  the  United  States  for  the  proper  mandate 
staying  proceedings  in  the  State  court,  and  to  compel  a  transcript  of  the 
record  to  be  certified  to  the  Federal  court.  If  the  other  party  claims 
that  the  cause  has  not,  for  any  reason,  been  effectually  removed,  he 
should  apply  to  the  Federal  court  to  remand  the  cause;  but  the  majority 
of  the  court  concun-ed  in  affirming  the  order  of  the  special  term  denjdng 
the  motion  of  the  party  who  sought  the  removal,  to  stay  in  the  State 
court  further  proceedings  in  the  action.  In  Fisk  v.  Union  Pacific  R.  R. 
Co.,  6  Blatchf.  362.  it  was  held  that  the  Federal  court  would  not,  after 
the  removal  of  the  cause  into  it,  stay  proceedings  in  the  State  courts 
these  being  null  and  void.  The  gi-ound  of  these  determinations  evi- 
dently is,  that  if  the  removal  was  properly  applied  for,  it  was  useless  to 
stay  the  proceedings  in  the  State  court,  as  it  was  deprived  of  jurisdic- 
tion—that is.  of  rightful  jurisdiction;  on  the  other  hand,  if  the  removal 
was  not  authorized,  it  would  be  improper  to  interfere  with  the  juris- 
diction of  the  State  court.  This  conclusion  largely  rests  upon  the  deli- 
cacy with  which  one  court  interferes  with  the  proceedings  of  another, 
and  leads  to  no  little    confusion,  expense  and  embarrassment   in  its 


REMOVAL    OF    CAUSES.  79 

State  court  rendered  subsequent  to  a  proper  application  to 
remove  the  cause. ^"'^ 

If  a  cause  be  improperly  removed  into  the  Circuit  court, 
and  it  entertains  jurisdiction  in  a  case  in  which  by  law  it  can 
have  none,  its  judgment  will  be  reversed  by  the  Supreme 
Court,  with  directions  to  the  Circuit  court  to  remand  the 
same  to  the  State  court  whence  it  was  improperly  taken  .^^ 

practical  effect.  For  example,  recently,  in  a  case  in  Iowa,  a  removal  of 
a  cause  was  sought  in  the  State  court.  The  State  court  denied  it.  A 
copy  of  the  record  in  the  cause  was  filed  in  the  United  States  Circuit 
court  for  Iowa.  That  court  held  that  the  removal  was  effectual;  the 
other  party  appeared,  and,  on  the  final  hearing,  a  decree  was  rendered 
against  him.  The  State  court  proceeded  with  the  cause  and,  on  final 
hearing,  rendered  a  decree  in  favor  of  the  other  party.  On  appeal 
to  the  Supreme  Court  of  the  state,  it  aflirmed  the  judgment  be- 
low, so  that  there  are  two  opposite  final  decrees,  one  in  the  State  court, 
and  the  other  in  the  Federal  comt — the  result  of  the  one  court  not  inter- 
fering with  the  other.  The  case  of  French  v.  Hay,  22  Wall.  250,  shows 
that  the  Federal  com-t  may  protect  a  party  by  injunction  against  a  judg- 
ment in  the  State  comt  rendered  therein  after  a  proper  application  to 
remove  the  cause. 

As  to  appeals  from  the  decision  of  the  Hist  prms  State  court  granting  or 
refusing  the  petition  for  removal  to  the  appellate  court  of  the  state,  and 
the  effect  thereof,  see,  Kanouse  v.  Martin,  15  How.  198,  s.  c.  14  How. 
23;  s.  c,  1  Blatchf.  149;  Burson  v.  Park  Bank,  40  Ind.  173;  Western 
Union  Telegraph  Co.  v.  Dickinson,  40  Ind.  444;  Indianapolis  etc.  R.  R. 
Co.  V.  Risley,  50  Ind.  60;  Wliiton  v.  R.  R.  Co.,  25  Wis.  424;  Raikoad 
Co.  V.  Wliiton,  13  Wall.  270;  Akerly  v.  Vilas,  24  Wis.  165;  s.  c,  2Bissell, 
110;  Home  Ins.  Co.  v.  Dunn,  20  Ohio  St.  175;  Ins.  Co.  v.  Dunn,  19  Wall. 
214;  Atlas  Ins.  Co.  v.  Byrus,  45  Ind.  133;  Gordon  v.  Longest,  16  Pet. 
97;  Hadley  v.  Dunlap,  10  Ohio  St.  1;  Stevens  v.  Phoenix  Ins.  Co., 
41  N.  Y.  149;  Holden  v.  Putnam  Ins.  Co.,  46  X.  Y.  1;  People  v.  Sup. 
Court,  34  m.  356;  Savings  Bank  v.  Benton.  2  Mete.  (Ky.)  240;  Taylor  v. 
Shaw.  54  N.  Y.  75  (1873);  Bell  v.  Dix  (interesting  case),  49  X.  Y.  232 
(1872).  In  case  of  removal  from  State  to  United  States  court,  when  the 
proceedings  for  removal  are  regular,  the  jurisdiction  of  the  State  court  is 
ipso  facto  ousted  by  virtue  of  such  proceedings.  The  allegation  as  to 
jurisdiction  can  be  proven  on  the  trial,  and  the  proper  judgment  asked 
for.  Shaft  v.  Phoenix  Mut.  Life  Ins.  Co.,  N.  Y.  Ct.  of  Appeals,  not  yet 
reported. 

133  French  v.  Hay,  22  Wall.  250. 

i34Knapp  V.  Railroad  Co.,  20  Wall.  117. 


APPENDIX. 


Forms  of    PETITIONS   FOR    REMOVAL   and  BONDS 

UNDER  THE    REVISED    STATUTES,   SeC.    639,  AND    THE    ACT 

OF  March  3,  1875.     Form  of  Writ  of  CERTIORARI 

AUTHORIZED  BY     SeC.    7  OF    THE    LAST-NAMED  STATUTE. 

The  following  Forms,  with  slight  alterations,  are  those  in 
common  use  in  the  Eighth  Judicial  Circuit.  By  reference  to 
the  text  it  mil  be  seen  that  they  are  in  some  respects  un- 
necessarily full ;  but  they  are  perhaps  safer  than  others 
would  be,  which  should  be  reduced  to  the  exact  require- 
ments of  the  act  in  the  particular  case. 

Form  of  petition /or  the  transfer  of  a  cause  from  the  State 
to  the  Federal  court  under  the  act  of  March  2,  1867 ,  as 
7'evised  and  embodied  in  the  Revised  Statutes  of  the 
United  States,  sec.  639,  sub-division  3. 

In  the Court  of County,  State  of . 


vs.                     I  Petition  lor  Traiisfe]-  of  Suit  to  Federal  Court. 
To  the  Honorable,  the Court  of  County,  State  of : 


Your  petitioner  [here  insert  the  plaintilf's  name],  respectfully  shoAvs 
that  he  is  plaintiff  in  the  foregoing  entitled  suit,  and  that  the  same  was 

by  him  commenced  on  or  about  the day  of  ,  18     ,  in  said 

Court ;  that  your  petitioner  was  at  the  time  of  bringing  said  suit,  and 
still  is,  a  citizen  of  the  State  of ,  and  a  resident  thereof. 

Your  petitioner  further  shows  that  there  is,  and  was  at  the  time  said  suit 
was  brought,  a  controversy  therein  between  your  petitioner  and  the  said 

defendant, ,  who  is  a  citizen  of  the  State  of ,  and  resident 

6 


82  APPENDIX. 

thereof;  that  .said  action  Avas  brought  by  your  petitioner,  for  the  pur 
pose  of  [here  briefly  state  the  nature  of  tlie  suit  and  the  relief  asked] , 
and  that  tlie  matter  in  dispute  in  this  suit  exceeds  the  sum  of  five  hun- 
dred dollars,  exclusive  of  costs.  Your  petitioner  further  represents, 
that  this  suit  has  not  been  tried,  but  is  now  pending  for  trial  in  the  Dis- 
trict court  of  the  State  of ,  for  said  County  of  ,  and  that  your 

petitioner  desires  to  remove  the  same  into  the  Circuit  court  of  the 
United  States  for  the  District  of ,  in  pursuance  of  the  act  of  Con- 
gress in  that  behalf  provided,  to  wit,  the  Kevised  Statutes  of  the  United 
States,  section  639.  sub-division  3. 

Your  petitioner  further  saj's,  that  he  has  tiled  the  affidaAit  required 
by  the  statute   in  such  cases,  and   offers  hercAAith  his  bond  executed 

by ,  of ,  as  surety,  in  the  penal  sum  of  two  hundred  and 

fifty  dollars,  conditioned  as  by  said  act  of  Congress  required. 

Your  petitioner  therefore  prays,  that  the  said  bond  may  be  accepted  as 
good  and  sufficient,  according  to  the  said  act  of  Congress,  and  that  the 
said  suit    may  be  removed  into  the  next  Circuit  court  of  the  United 

States,  in  and  for  said  District  of  ,  pursuant  to  the  aforesaid  act  of 

Congress,  in  such  case  made  and  provided ;  and  that  no  fmther  proceed- 
ings may  be  had  therein  in  this  court. 

And  your  petitioner  will  ever  pray,  etc., 

Attornev  for  Plaintiff. 


Form  of  affidavit  of  pre.judice  or  local  influence  to  ac- 
company the  preceding  petition. 

Ix  THE  Court  of County,  State  of . 

Plaintifts, 

Affidavit. 
Defendants. 

State  of ,  County  of .  sa. 

I. .  being  duly  sworn,  do  sav  that  I  am  one  of  the 

in  the  above  entitled  cause:  that  1  have  reason  to  believe,  and  do  be- 
lieve, that  from  jirejudice  and  local  influence. will  not  be  able 

to  obtain  justice  in  said  State  Court. 

Subscilbed  by  the  said in  my  presence,  and  by  him  sworn 

to  before  me  at ,  this day  of  ,  A.  D.  187     . 

Xotary  Public  in  and  for County. 

Who  may  make  this  affidavit.     See  ante,  sec.  14.     How 
to  be  taken  and  certiticd.     See  ante,  sec.  14. 


APPENDIX.  83 

Form  of  BOND  to  accompany  the  Preceding  Petition  for 
Removal  of  a  Cause,  iinder  the  Act  of  MarcJi  2,  1867 , 
as  Pevised  and  Embodied  in  the  Revised  Statutes  of  the 
United  States. 

Know  all  men  by  these  presents : 

That  we as  principal,  and of  as  surety,  are 

liereby  held  and  tii-mly  bound  unto in  the  penal  sum  of 

Dollars,  lawful  money  of  the  United  States,  for  the  payment  of 

which,  well  and  truly  to  be  made,  we  bind  ourselves  jointly  and  severally 
tirmly  by  these  presents. 

The  condition  of  this  obligation  is  such,  that  if shall  enter 

and  file,  or  cause  to  be  entered  and  filed,  in  the  next  Circuit  of  the  United 

States,  in  and  for  the District  of ,  on  the  first  day  of  its  session, 

copies  of  all  process,  pleadings,  depositions,  testimony  and  other  pro- 
ceedings in  a  certain  suit  or  action  now  pending  in  the  District  court  of 

the  County  of  and  State  of  .  in  which is  plaintiff, 

and defendant ;  and  shall  do  such  other  appropriate  acts  as, 

by  the  act  of  Congress  in  that  behalf,  are  required  to  be  done  upon  the 
removal  of  such  suit  from  said  State  court  into  the  said  United  States 
court,  then  this  obligation  to  be  void,  otherwise  of  force. 

Dated ,  A.  D.  187     . 


State  of  . 

County. 

I. of  said  County,  the  surety  named  in  the  foregoing  bond, 

l)eing  duly  sworn,  do  depose  and  say  that  I  am  a  resident  of  the  State  of 

,  and  a  property-holder  therein;  that  I  am  worth  the  sum  of  five 

hundred  dollars,  over  and  above  all  my  debts  and  liabilities,  and  exclu- 
sive of  property  by  law  exempt  from  execution ;  that  I  have  property  in 
the  State  of ,  liable  to  execution,  of  the  value  of  more  than  live  hun- 
dred dollars. 


Subscribed  in  my  presence  by .  and  by  him  sworn  to  before 

me  this dav  of .  A.  D.  187     . 


The  above  form  of  bond  is  applicable,  also,  to  removals 
under  section  633,  sub-division  1,  of  the  Revised  Statutes, 
formerly  section  12  of  the  Judiciary  Act.  If  the  removal  is 
under  sub-division  2  of  said  section  039,  by  the  non-resident 


84  APPENDIX . 

defendant,  the  condition-  of  the  bond  may  be  modified,  as 
prescribed  by  this  section,  to  enter  and  tile  in,  etc.,  on, 
etc.,  "  copies  of  all  process,  pleadings,  depositions,  testi- 
mony, and  all  other  proceedings  in  the  cause  concerning  or 
affecting  the  petitioner  for  the  removal  in  a  certain  suit  or 
action  now  pending,"  etc.,  as  in  the  preceding  form. 


PETITION  FOR  REMOVAL  by  the  NON-RESIDENT  De- 
fendant UNDER  THE  REVISED  STATUTES,  SeC.  639,  SUB- 
DIVISION   2,  FORMERLY  THE    ACT    OF    JuLY    27,    1866. 

Describe  the  parties,  the  State  court  in  which  the  suit  is 
pending,  as  in  the  preceding  petition,  stating  particularly 
the  citizenship  of  each  of  the  plaintiifs  and  each  of  the  de- 
fendants— the  amount  or  value  in  dispute,  as  in  the  preced- 
ing form.  Then  insert  in  the  petition  for  removal  a  state- 
ment that  the  said  suit  in  the  said  State  court  is  one  in 
which  there  can  be  a  final  determination  of  the  controversy, 
so  far  as  concerns  the  petitioner,  without  the  presence  of 
the  other  defendants  as  parties  in  the  cause.  [No  affidavit 
of  prejudice  or  local  influence  is  required.]  Then  offer 
surety  as  in  preceding  petition,  and  pray  removal  of  the 
cause,  so  far  as  concerns  the  petitioner  for  the  removal,  as 
in  the  foreo:oins  form. 


Form  of  Petition  for  Removal  on  the  ground  of  Citizen- 
ship, under  the  Act  of  March  3,  1875,  where  the  Adver- 
sary Parties  are  all  Citizens  (f  different  States,  and  all 
the  Plaintiffs  or  all  the  Defendants  unite  in  the  Petition 
for  Removal. 

In  the Court  of County,  State  of . 


Plaintift'.  |      Petition  for  removal  to  the  Circuit 
.Court  of  the  United  States.  District  of 
Defendant. 

To  Said Court : 

Your  Petitioner  respectfully  shows  to  this  Honorable  Court  that  the 


APPENDIX.  85 

matter  and  amount  in  dispute  in  the  above  entitled  suit  exceeds,  exclu- 
sive of  costs,  the  sum  oi-  value  of  five  hundred  dollars. 

That  the  controversy  in  said  suit  is  between  citizens  of  different  States, 
and  that  the  Petitioner  was,  at  the  time  of  the  commencement  of  this 

suit,  and  still  is,  a  citizen  of  the  State  of  — -,  and  that was 

then,  and  still  is,  a  citizen  of  the  State  of •,  and  that was  then, 

and  still  is,  a  citizen  of  the  State  of  .  [Here  give  in  like  man- 
ner the  citizenship  of  each  of  the  several  plaintiffs  and  defendants  in  the 
cause.]* 

And  your  petitioner  offers  herewith  a  bond  with  good  and  sufficient 
surety  for  his  entering  in  said  Circuit  Court  of  the  United  States,  on 
the  fii'st  day  of  its  next  session,  a  copy  of  the  record  in  tliis  suit,  and  for 
paying  all  costs  that  may  be  awarded  by  said  Circuit  Court,  if  said  Court 
shall  hold  that  this  suit  was  wrongfully  or  improperlj^  removed  thereto. 

And  he  praj's  this  Honorable  Court  to  proceed  no  further  herein,  ex- 
cept to  make  the  order  of  removal  required  by  law,  and  to  accept  the 
said  surety  and  bond,  and  to  cause  the  record  herein  to  be  removed  into 

said  Circuit  Court  of  the  United  States  in  and  for  the  District  of ,  and 

he  will  ever  pi'ay. 

Attorneys  for  Petitioner. 

The  act  of  1875  does  not  require  the  petition  for  the 
removal  to  be  verified  ;  but,  as  aft'ording  au  assurance  that 
tiie  application  is  made  in  good  faith,  a  verification  may 
very  properly  be  added,  which  may  be  in  the  following- 
form  : 

State  of . 


Countv. 


I. ,  being  duly  sworn,  do  say  that  I  am  a  member  of  the  tkm 

of ,  the  attorneys  for  the  petitioner  in  the  above  entitled  cause ; 

that  I  have  read  the  foregoing  petition,  and  know  the  contents  thereof; 
and  that  the  statements  arid  allegations  therein  contained  are  true,  as  I 
verily  believe. 

Subscribed  by  the  said in  my  presence,  and  by  liim  sworn 

to  before  me,  this  the day  of .  A.  D.  187  . 


If,  however,  all  the  parties  plaintiff  or  defendant  do  not 
join  in  the  application  for  the  removal,  and  the  application 
is  made  under  the  latter  clause  of  sec.  2  of  the  act  of  March 
3,  1875,  by  part  of  the  plaintifls  or  part  of  the  defendants 
actually  interested  in  the  controversy,  follow  the  preceding 


86  APPENDIX. 

form  down  to  the  star  (*),  giving  the  citizenship  of  each  of 
the  plaintilfs  and  defendants,  and  then  add  the  following  : 

Your  Petitioner  states  that,  in  the  said  suit  above  mentioned,  there  is  a 
controversy  wliieh  is  wholly  between  citizens  of  different  States,  and 
wliich  can  be  fully  determined  as  between  them,  to  wit,  a  controversy 

between  the  said  petitioner  and  the  said ,  the  said 

and  the  said ,  [naming  the  parties  actually  interested  in  the 

said  controversy]. 

If  the  nature  of  the  controversy  does  not  fully  appear  in 
the  pleadings,  it  may  be  advisable  to  add  a  statement  of  the 
facts  showing  the  case  to  be  one  within  the  latter  clause  of 
sec.  2  of  the  act  of  March  3,  1875.  After  which  let  the 
petition  follow  the  form  above  given. 

If  the  PETITION  FOR  REMOVAL  is  ou  the  ground  that  the 
suit  is  one  "  arising  under  the  Constitution  or  Laws  of  the 
United  States,  or  treaties  made  under  their  authority,''  it  is 
not  necessary  to  state  the  citizenship  of  the  parties.  It  is, 
however,  proper  to  do  so  ;  and  if  there  are  several  parties, 
and  the  transaction  in  controversy  is  complex,  it  may  be 
advisable  to  state  the  citizenship  of  each.  The  preceding- 
form  can,  therefore,  be  followed  down  to  the  star  (*),  and 
then  there  may  be  added  the  following : 

Your  Petitioner  states  that  the  said  suit  is  one  arising  under  the  laws  of 
the  United  States,  in  this,  to  wit :  [Here  state  the  facts  which  show  the 
Federal  character  of  the  case;  see  ante^  sees.  2  and  8.] 

After  which  let]]the  petition  continue  as  in  the  form  above 
given. 


Form  of  bond  for  the  removal  of  a  cause  under  the  act  of 
March  3,  1875. 

Know  all  Men  bv  these  Presents  : 

That  I. ,  as  principal,  and .  as  sureties,  are  held 

and  firmly  bound  unto in  the  penal  sum  of  dollars,  the  pay- 
ment whereof  well  and  truly  to  be  made  unto  the  said ,  heirs 

and  assigns,  we  bind  ourselves,  our  heirs,  representatives  and  assigns, 
jointly  and  severally,  firmly  by  these  presents. 

Yet,  upon  these  conditions :  The  said having  petitioned  the 


APPENDIX .  87 

Court  of  County.  State  of  ,  for  the  removal  of  a  certain 

cause  therein  j^ending,  wlierein plaijitiff ,  and de- 
fendant ,  to  the  Circuit  court  of  the  United  States  in  and  for  the  Dis- 
trict of . 

Xow,  if  the  said .  j'our  petitioner,  sliall  enter  in  the  said 

Circuit  court  of  the  United  States,  on  the  tirst  day  of  its  next  session,  a 
copy  of  the  record  in  said  suit,  and  shall  well  and  truly  pay  all  costs 
that  may  he  awarded  by  said  Circuit  court  of  the  United  States,  if  said 
court  shall  hold  that  said  suit  was  wrongfully  or  improperly  removed 
thereto  [if  special  bail  teas  originally  requisite  i7i  said  cause,  then  add  ••and 
shall  then  and  there  appear  and  enter  special  hail  in  said  suit "]  then 
this  obligation  to  he  void;  otherwise,  in  full  force  and  virtue. 

Witness  our  hands  and  seals,  this day  of  ,  A.  D.  187     . 

[L.  S.] 

[L.  S.] 

—  [L.  S.] 


It  is  advisable  that  the  sureties  justify,  but  it  is  not  abso- 
hitely  necessary.  Form  of  justification,  see  siqjra,  at  the 
end  of  the  form  of  bond  under  the  act  of  March  2,  1867, 


Form  of  Writ  of  Certiorari  binder  Sec.    7  of  the  Act  of 
March  3,  1875. 

The  president  of  the  United  States  of  America  to  the  Judge 
OF  THE  Court  of  [here  describe  the  State  court  by  name] . 

Wliereas  it  hath  been  represented  to  the  Circuit  court  of  the  United 

States  for  the  District  of  ,  that  a  certain  suit  was  conniienced  in  the 

court  of  [here  name  the  State  court]  wherein ,  a  citizen 

of  the  State  of  ,  was  plaintitf  and .  a  citizen  of  the  State 

of .  was  defendant,  and  that  the  said duly  tiled  in  the  said 

State  court  his  petition  for  the  removal  of  said  cause  into  the  said  Cir- 
cuit court  of  the  United  States,  and  tiled  with  said  petition  the  bond 
with  surety  required  by  the  act  of  Congress  of  March  3,  1875,  entitled 
•'  an  act  to  determine  the  jurisdiction  of  the  Circuit  courts  of  the  United 
States,  and  to  regulate  the  removal  of  causes  from  State  courts  and  for 
other  piu'poses,"  and  that  the  clerk  of  the  said  State  court  above-named 
has  refused  to  the  said  petitioner  for  the  removal  of  said  cause  a  copy  of 
the  record  therein,  though  his  legal  fees  therefor  were  tendered  by  the 
said  petitioner : 

You.  therefore,  are  hereby  commanded  that  vou  forth^^^th  cer- 


00  APPENDIX. 

tify,  or  cause  to  be  certified,  to  the  said  Circuit  covut  of  the  United 

States  for  the  District  of ,  a  full,  true  and  complete  copy  of  the 

record  and  proceedings  in  the  said  cause,  in  which  the  said  petition  for 
removal  was  filed  as  aforesaid,  plainly  and  distinctly,  and  in  as  full  and 
ample  a  manner  as  the  same  now  remain  before  you,  together  with  this 
writ ;  so  that  the  said  Circuit  court  may  be  able  to  proceed  thereon  and 
do  what  shall  appear  to  them  of  right  ought  to  be  done.  Herein  fail 
not. 

Witness  the  Honorable  Morrison  K.  Waite,  Chief-.Jus- 
[SEAL.]             tice  of  the  Supreme  Comt,  and  the  seal  of  the  said  Cir- 
cuit court  hereto  affixed  this  the day  of ,  A.  D. 

187     . 

Clerk  of  said  Circuit  Court. 

The  writ  of  certiorari  should  be  directed  to  the  judge  or 
judges  of  the  State  court,  but  a  return  to  the  writ  duly  cer- 
tified may  be  made,  it  is  supposed,  by  the  clerk  of  the  said 
court.  Stewart  v.  Engle,  9  Wheat.  426.  See  Bacon's 
Abridg.,  title  Certiorari;  ante,  sec.  10. 


INDEX. 


(The  i-eferences  are  to  pages;  references  to  notes  are  indicated  by  the  letter  n. 


ABATEMENT. 

Plea  in,  proper  practice  where  the  petition  sets  out,  as  ground  of 
removal,  facts  that  are  not  true,  75. 

Motion  to  remand  and  plea  in  abatement  contrasted ;  grounds  on 
which  each  proceeds,  75. 
ADMINISTRATOKS.    See  Executors  and  Administrators. 
AFFIDAVIT. 

Of  prejudice  or  local  influence,  under  the  act  of  1867.  by  whom 
made,  61,  62. 

Need  not  state  reasons  or  facts  showing  the  local  influence,  etc,  62. 

May  be  taken  and  certified  in  conformity  ^vith  the  local  laws,  62, 
n.  94. 

Infants  and  persons    non  compos  mentis,  need  not,  and  can  not. 
make  affidavit,  62. 

Reasons  why  affidavit  should  not  always  be  required  to  be  made 
by  the  party  himself,  62. 

The  proper  practice,  where  attorney  or  agent  makes  it.  62. 
ALIENS. 

Right  of,  to  remove  suit  against  civil  officers,  etc.,  under  sec.  644  of 
Rev.  Stats.,  6,  7. 

Can  not  remove  suit,  under  Judiciary  Act  (Rev.  Stats.,  §  640,  sub- 
division 1),  19,  n.  25. 

Alienage  as  the  ground  of  Federal  jurisdiction,  19,  u.  25. 

Resident  unnaturalized  foreigners,  deemed  aliens,  19,  n.  25.    See 
also,  48,  n.  65. 

Indians,  not  aliens,  19,  n.  25. 

Alienage,  no  cause  of  removal  under  act  of  1867,  23,  n.  32. 

A  state  can  not  make  the  subject  of  a  foreign  government  a  cit- 
izen of  the  United  States,  48,  n.  65. 

Corporations  chartered  by  foreign  coimtries,  deemed  aliens  for 
purposes  of  removal,  51. 
AMENDMENTS. 

In  the  pleadings,  allowed  after  removal,  43. 


90  INDEX. 

AMENDMENTS.—  Continued. 

Subsequent  amendment  in  State  court  can  not  take  away  right  of 

removal  when  once  perfected,  68. 
Allowed,  where  attorney  of  petitioning  plaintiff  had  misstated  his- 
citizenship,  71,  n.  118. 
AMOUNT  IN  DISPUTE.    See  Value. 
APPEAL.    See  also  Practice. 

As  to  appeal,  from  decision  of  nisiprius  State  court  granting  or  re- 
fusing removal,  to  State  appellate  court,  and  effect  thereof,  79 ^ 
note. 
ATTACIOIENT. 

Suits  by,  removable  under  act  of  1875,  37,  n.  49. 

Suits  commenced  by,  may  be  removed  by  corporation  of  another 

state,  50. 
Of  property,  by  express  provision,  holds  after  removal,  until  dis- 
solved by  Circuit  court,  71,  72,  n.  120. 
ATTORNEY. 

Whether  an  attorney  may  make  the  afhdavit  of  local  influence  in 

any  case,  62. 
Mistake  of,  in  stating  citizenship  of  plaintiff  in  petition,  permitted 
to  be  corrected  after  removal,  71,  n.  118. 
AVERMENT.     See  Practice  and  Pleading. 

B. 

BANKRUPT  ACT. 

Case  involving  construction  of.  removable  under  act  of  1875,  33. 
BOND.     See  also  Surety. 

The  defendants,  under  the  Judiciary  Act,  must  give  several,  or 

joint  and  several  bonds,  65  n.  103. 
Instance  of  case  remanded,  because  of  non-compliance  of  bond 

with  act  of  1867,  65,  n.  103. 
Power  of  State  court  to  refuse  bond,  where  the  same  is  apparently 

ample,  66. 
Effect  of  petition  and  bond  on   the  jurisdiction   of  State  court. 

Sec.  XV,  pp.  66-70. 
Sufficiency  of,  by  what  court  determined,  69. 
Bond  of  indemnity  valid,  after  removal,  until  when,  71. 
Condition  in  bond  to  procure  discharge  from  a  writ  of  ne  exeat, 

that  will  estop  the  defendant  to  remove  the  cause,  74,  n.  122. 
Forms  of  Bond.    See  Appendix. 
BURDEN  OF  PROOF. 

As  to  iurisdictional  facts,  where  contest  is  made  after  removal,  76. 


CAUSES  OF  ACTIONS. 

Improper  joinder  of.  17. 


INDEX.  91 

CAUSES  OF  AC'no:SS.— Continued. 

In  an  action  for  joint  indebtedness,  who  must  apply  for  removal 

under  acts  of  1866  and  1867,  18,  n.  23. 
CERTIORAHI. 

Will  issue  from  Federal  court  having  jurisdiction  under  act  of 

1875.  to  enforce  removal,  bring  up  record,  etc.,  44. 
Object  of  the  writ; — for  what  frequently  resorted  to,  44. 
Improper  return  to  writ,  for  State  court  to  make,  78. 
Forms  of  writ  of  Certiorari.     See  Appendix. 
CHANCERY  CAUSE.     See  Equity. 
CITIZENSHIP. 

Of  parties,  as  ground  of  removal,  under  sec.  12  of  Judiciary  Act, 

14. 
Same,  under  sec.  11  of  same  act,  15. 
Same,  under  act  of  1866,  20,  21.     (See  also,  57.) 
Same,  under  act  of  1867.  23-25.     (See  also,  57.) 
Same,  under  act  of  March  3,  1875.  26-31,  passim. 
Citizenship  of  what  parties  only  essential  in  the  determination  of 

Federal  jm-isdiction,  where  such  jurisdiction  depends  at  all  on 

citizenship),  48. 
State  citizenship,  for  jurisdictional   purposes,  depends   on  what 

merely,  4:8,  n.  65. 
Effect  of  bonajide  change  of  domicile.  48.  n.  65. 
Citizenship  of  trustees,  48,  n.  66. 
Of  corporations,  by  what  alone  determined,  49. 
Same  rule  applicable  to  public  and  municipal  corporations.  49,  50. 
Effect  of  consolidation  under  charters  of  different  states  upon  cit- 
izenship of  consolidated  company  and  jurisdiction,  49,  n.  67. 
Citizenship  of  corporation  chartered  by  several  states,  49.  n.  67. 
Citizenship  of  national  banks,  for  jurisdictional  purposes,  51. 
What  petition  should  state  in  relation  to  citizenship  of  the  parties, 

63. 
Mistake  in  original  petition  as  to  citizenship  of  plaintiff,  allowed 

to  be  corrected  after  removal,  71,  n.  118. 
Citizenship,  requisite  for  removal,  when  presumed  in  Supreme 

Court,  in  a  case  where  the  papers  were  afterwards  destroyed  by 

fire,  76,  n.  130. 
Citizenship  and  residence  not  synonymous  terms,  77. 
CIVIL  RIGHTS. 

Right,  to  removal  of  cause,  of  persons  denied  civil  rights.  5.  u.  3. 
CLERK  OF  STATE  COURT. 

Criminally  liable  for  refusing  copy  of  record  to  party  applying  for 

removal,  when,  44. 
CONSPIRACY.    See  Torts. 
CONSTITUTIONAL  LAW. 

Validity  of  the  acts  of  1789,  1833,  1863,  1866  and  1867,  11.  12. 

The  right  to  removal  can  not  be  defeated  by  state  legislation,  13- 

State  statute  attempting  to  restrict  such  right,  void,  13. 


■^2  INDEX. 

COXSTITUTIOXAL  J.XVf .—Continued. 

And  injunction  will  be  granted  to  restrain  revocation  of  license 

under  such  statute,  13,  n.  16. 
Constitutionality  of  the  act  of  1866,  20,  n.  26, 
And  that  of  the  act  of  1867  adjudged  by  the  Supreme  Court,  25. 
Whether  Congress  has  repealed  it,  25. 

Constitutional  limitations  of  the  Federal  judicial  power,  30  et  seq. 
CONTINUANCE. 

Effect  of  continuance,  hy  consent,  of  cause  that  was  at  issue  and 

could  have  been  tried,  under  act  of  1875,  58. 
CORPORATIONS.    See  also  Joint  Stock  Companies. 

Suit  against  Federal,  when  removable  under  act  of  July  27. 1868 

(Rev.  Stats.,  sec.  640),  7,  n.  6. 
Scope  of  the  act ; — what  corporations  excluded  from  its  operation ; 

conditions  essential  to  make  it  operative.  7-9. 
Officers  of.  as  defendants  to  a  bill  in  equity,  when,  and  in  what 

sense,  nominal  parties.  17. 
Corporations  are  citizens  of  state,  that  created  them.  49. 
Citizenship  of  members  immaterial,  and  averment  or  proof  thereof 

incompetent.  49. 
Municipal  corporations  governed  by  same  principle  for  jurisdic- 
tional purposes.  49.  50. 
Citizenship  of  corporation  chartered  by  different  states;  its  effect 

on  jurisdiction.  49,  n.  67. 
Effect  of  different  companies  constructing  same  line  of  road,  49, 

n.  67. 
Effect  of  consolidation  of  different  companies.  49.  n.  67. 
Citizenship  of  consolidated  company.  49.  n.  67. 
Right  of  foreign  corporation  to  remove  cause,  not  affected  by  state 

legislation  authorizing  service  of  process  on  its  agent  in  the  state,  51 . 
And  its  citizenship  not  affected  even  by  its  own  assent  to  be  sued 

in  another  state.  51. 
Corporations    within    the    contemplation   of    the    removal    acts. 

though    they    can    make   affidavit   only  through  their  proper 

officers.  61. 
President  and  general  manager  of  railway  company,  prima  facie 

authorized  to  make  the  affidavit,  61.  62. 
Case  where  the  solicitor  of  the  corporation  defendant  was  held 

authorized  to  verify  petition.  62. 
Superintendent  of  railway  company,  when  only  competent  to  make 

affidavit.  62. 
COSTS. 

In  suits  removed  from  State  courts,  by  what  statutes  governed,  42. 


DECLARATION.    See  Practice  and  Pleading. 


INDEX. 


93 


DEFENSE. 

What  is  a  defense  ••  arising  under  the  Constitution,"  etc.,  "-of  the 
United  States?"    Act  of  July  27,  1868,  discussed;  its  scope  and 
operation,  7-9. 
DISMISSAL.     See  Kemanding  Cause. 
DOMICILE. 

The  only  essential  element  of  state  citizenship,  for  jurisdictional 

purposes,  48,  n.  65. 
Effect  of  ibo7ia  fide  change  of,  on  citizenship,  48.  n.  65, 

E. 

EJECTMENT. 

Ejectment  suit  not  removable  under  acts  of  March  3.  1863.  and 

March  2,  1867,  7,  n.  4. 
But  otherwise,  under  act  of  1875,  37,  n.  49. 
EMINENT  DOMAIN. 

Suit  to  determine  value  of  private  property  which  an  incorporated 
company  seeks  to  appropriate  under  the  right  of,  removable.  36, 
n.  47 ;  38,  n.  49. 
ENTERING  AN  APPEARANCE. 

Meaning  of,  construed  and  applied.  18,  19  n.  24. 
State  com-t  allowing  an  appearance  to  be  entered  nunc  pro  tunc. 
does  not  restore  right  of  removal  under  sec.  12  of  Judiciary  Act. 
.52,  n.  77. 
EQUITY. 

Bill  in,  to  reform  an  insurance  policy,  is  such  an  orujinal  suit  as 

may  be  removed,  36.  n.  47 ;  38,  n.  49. 
Parties  to  bill  in,  tiled  in  behalf  of  complainant  and  s?{c7i  others  as 

might  come  in.  etc.,  49,  n.  65. 
Chancery  cause,  when  only  triable.  58. 

Application  for  its  removal,  when  in  time,  under  act  of  1875,  58. 
"VVliefher  laches  in  making  up  issues  will  defeat  right  of  removal. 

.58. 
Effect  of  local  law  or  practice  reipiiring  replication  to  complete 
the  issue,  in  absence  of  laches  on  part  of  party  applying  for 
removal,  58. 
ESTATES. 

Removability  of  suits  for  the  establishment  of  claims  agamst  the 
estates  of  deceased  persons,  38.  39. 
ESTOPPEL. 

Acts  of  party  entitled  to  removal,  that  will  estop  him  to  apyly  for 
it,  73,  74,  n.  122. 
EXECUTORS  AND  ADMINISTRATORS. 

Citizenship  of,  how  affects  Federal  jurisdiction.  48,  n.  66. 
Such  citizenship  disregarded  in  what  actions.  48.  n.  66. 
Citizenship  of  executors,  how  determined,  48,  n.  66. 
Effect  of  removal  of  executor  to  another  state,  48.  n.  66. 


94  INDEX. 


FEDERAL  JUEISDICTIOX.  See  also  Suits;  Attachment:  Bank- 
RiPT  Act;  Civil  Eights;  Ejectment;  Eminent  Do- 
main; Equity;  Estates;  Garnishee;  Injunction;  Land 
Title;  Mining  Claims;  Eeplevin;  Slander;  Wills 
and  various  other  appropriate  titles. 

Its  historical  development;  causes  of  its  constant  growth  and 
present  importance,  4-5. 

Whether  appellate  or  original,  in  case  of  causes  removed  from 
State  courts.  5. 

Jurisdiction  of  Circuit  courts,  under  sees.  11  and  12  of  Judiciary 
Act.  14.  15. 

Such  jurisdiction  dependent  on  what.  16. 

Essential  conditions  of  same,  under  sec.  12  of  Judiciaiy  Act, 
17-19. 

Alienage,  as  the  ground  of.  19,  n.  25. 

Original  jurisdiction  of  U.  S.  Circuit  courts  under  the  act  of 
March  3,  1875.  26. 

Enlarged  federal  jurisdiction  under  this  act.  in  respect  of  subject- 
matter.  27. 

In  respect  of  citizenship,  under  this  act.  26-31.  passm. 

Limits  of  the  Federal  judicial  power  under  the  clause  of  the  Con- 
stitution of  the  United  States:  ■•All  cases  arising  under  the 
Constitution  and  Laws  of  the  United  States."  32,  33. 

The  jurisdiction  unquestionable,  when  the  main  controversy  is  be- 
tween citizens  of  diflCerent  states,  and  a  mere  incident  can  not 
defeat  the  removal  (Act  of  1875).  34,  35. 

Power  of  Federal  couxl  to  continue,  modify  or  dissolve  injunction 
of  State  court  restraining  execution  of  a  judgment  of  the  latter 
court.  39. 

Power  of  Federal  court  to  enforce  removal  by  writ  of  certiorari  to 
State  court.  44. 

To  determine  the  Federal  jurisdiction,  citizenship  of  parties  ben- 
eficially interested  not  considered,  48. 

Executors,  administrators  and  trustees  embraced  in  the  rule,  48. 

Eftect  on,  of  charters  granted  by  different  states  to  same  com- 
pany, 49,  n.  67. 

Effect  on,  of  several  companies  constructing  same  line  of  road, 
49,  n.  67. 

Eftect  on.  of  consolidation,  49.  n.  67. 

Over  municipal  corporation,  not  ousted  bj*  state  statute.  50, 
u.  68. 

Federal  court  must  determine  the  question  of  jurisdiction,  where 
proceedings  are  in  conformity  with  the  removal  act.  but  the 
facts  are  seriously  contested.  67.  n.  107. 

Effect  on,  of  erroneous  determination  by  the  State  court,  that  pe- 
tition is  either  sufficient  or  insufficient.  70. 


INDEX.  95 

FEDEK.^L  JLTIISDICTIOX.— CoTirtwwed. 

Effect  of  petition  for  removal  on  the  Federal  jurisdiction.    Sec. 
XVI,  pp.  70-72. 

Until  when  the  Federal  jurisdiction  does  not  attach.  71. 

Includes  power  to  allow  amendments,  71. 

The  true  test  of,  under  sec.  5  of  the  act  of  1875,  73. 

Inquiry  into  the  fai-ts  of  the  petition,  exclusively  one  for  Federal 
court,  75. 
FINAE  HEABIXG,    See  Trial. 
FIXAE  JUDGMENT.    See  Judgment. 
FIXAL  TRIAL.     See  Trial. 
FORCE  ACT. 

Wliat  suits  removable  under  this  act,  (i. 


G. 

OARXISHEE. 

A  garnishee  or  tnistee,  holding  property  of  principal  defendant, 
may  not  as  co-defendant  remove  cause  as  to  himself  only,  36, 
n.  47. 

H. 

HABEAS  CORPUS. 

Certiorari  and,  under  •■  Force  Act.''  44. 


IXDIAXS. 

Xot  deemed  aliens.  19.  n.  25. 
IXJUXCTIOX. 

Will  be  granted  to  restrain  revocation  of  license  of  insurance  com- 
pany under  state  statute  restricting  right  of  removal,  13,  n.  16. 

Injunction  suit  to  restrain  execution  of  judgment  of  State  court, 
removable.  39. 

Writs  of.  issued  by  State  court,  continue  in  force  after  removal,  till 
dissolved  by  Circuit  court,  71.  72.  n.  120. 
rXTERPRETATIOX. 

Defense  ■•arising  under  the   Constitution."   etc..  of  the  United 
States.  7-9. 

'•  Citizenship  "  and  ••  residence.'*  77. 

'■  Entering  an  appearance.'"  IS.  19. 

"Final  judgment." 55.  56. 

Justice  of  the  Peace  not  a  ••  State  court,"  53. 

"Record.'"  44, 

'•  Suit;  ""  ••  action:  ""  "  case;  "  ••  cases  in  law  and  equity."'  40. 

Suit  ••  arising  under  a  law  of  the  United  States."  40. 


9  6  INDEX. 

INT^ERPRWrATIO^— Continued. 

"  Any  suit    *    *    now  pending,"  60. 

*^'  Before  or  at  the  term.,  at  which  the  cause  could  be  first  tried,"  58. 

••Trial."  59. 

••  Trial  "  and  ••  Hearing, ""  53. 

-Final  Trial."  53,  .54. 


JOINDEK.    See  Parties;  Cause  of  Action. 
JOLNT  STOCK  COMPANIES. 

Diversity  of  judicial  decisions  as  to  the  right  of,  hut  partially  en- 
dowed vrith  the  attributes  of  corporations,  to  sue  in,  or  remove 
cause  to  Federal  court,  50. 
JUDGMENT. 

"Final  judgment;''' — meaning  of  the  plirase  in  the  acts  of  1867, 
and  striking  illustration,  55,  56. 
JUDICIAPY  ACT. 

The  Federal  Judicial  Sj^stem.  as  established  by  the  act  of  1789; — 
its  nature,  extent  and  ^\'isdoni  pointed  out,  3. 

Its  growth  and  importance.  3 — 5. 

Text  of  section  12,  10.  n.  14. 

Citizenship  of  the  parties  as  the  ground  of  removal  under  sec.  12 
of  this  act.  14. 

-Jurisdiction  of  the  Cii'cuit  court  under  sec.  11  of  the  same  act,  15. 

What  circumstances  must  concur  to  give  the  power  of  removal 
under  sec.  12  of  this  act,  17-19. 
JUKISDICTIOX. 

As  to  Jurisdiction  of  State  Courts,  see  State  Courts. 

As  to  .Jurisdiction  of  Federal  Courts,  see  Federal  Juris- 
diction. 

Conflict  of  jurisdiction;  comity;  expense  and  embaiTassmeut  re- 
sulting therefi-om.  78,  note. 
JUSTICE  OF  THE  PEACE. 

Not  a  •*  State  court."  within  the  meaning  of  the  act  of  1867,53. 


LACHES. 

In  making  up  issues,  how  aftect  party  applying  for  removal  of 

chancerv  cause.  58. 
Effect  of  local  law  requiring  replication  to  complete  issue,  when 
there  is  no  defauU  in  making  up  the  issues  by  the  applicant  for 
removal.  58. 
LAND  TITLE. 

Case  relating  to.  not  one  of  Federal  jurisdiction,  except  when.  33. 
LAW  ACTION.    See  Practice  and  Pleading. 


INDEX.  97 

LOCAL  INFLLTENCE. 

Affidavit  of,  not  required  by  tlie  act  of  1866,  20,  n.  26. 

The  Act  of  Marcli  2,  1867,  22-26;  and  see  61. 

Construction  and  extent  of  application  of  this  act,  23,  n.  32. 

Affidavit  of,  should  be  made  by  tlie  party  himself,  if  possible,  61. 

By  whom  made,  if  filed  on  behalf  of  a  corporation,  61. 

Whetlier  an  attorney  may  mal^e  the  affidavit  in  any  case,  62. 


M. 

MANDAMUS. 

From  Federal  to  State  court  not  authorized,  unless  when,  45,  note. 
Writ  of,  or  other  process,  to  restrain  State  court  from  proceeding 
with  cause  remanded,  not  issued  by  State  Supreme  Court  until 
when,  76,  n.  128. 
MINLN^G  CLAOIS. 

Kemoval  of  suits  in  relation  to,  under  act  of  1S75,  33. 
MISTAKE.     See  Amendments;   Petition;  Citizenship;  Practice 

AND  Pleading. 
MODE  OF  MAKING  APPLICATION.     See  Bond;  Petition;  Affi- 
davit; Practice;  Local  Influence. 
Exposition  of  subject  in  full.     Sec.  XIV,  pp.  61-66. 
MUNICIPAL  COEPOEATIONS.    See  also  Corporations;  Citizen- 
ship. 
Reason  wliy  a  citizen  of  another  state  should  have  his  remedy 
against  a  municipal  corporation  in  the  Federal  court,  50,  n.  68. 
The  Federal  jurisdiction  over,  can  not  be  ousted  by  state  statutes. 
50,  n.  68. 

N. 

NATIONAL  BANKS. 

Citizenship  of,  for  jurisdictional  purposes,  51. 

Excluded  from  the  provisions  of  the  act  of  July  27,  1868,  51. 

But  entitled  to  removal  under  any  of  tlie  other  acts,  51. 

A  simihir  riglit  not  granted  to  the  Beccivers  of  sucli  associations,  52. 
NOMINAL  PARTIES.     See  Parties. 
NOTICE. 

Adverse  party  not  entitled  to,  of  time  and  place  of  tiling  petition, 
67,  n,  107. 

O. 

OFFICERS. 

As  to  Officers  of  Corporations,  see  Corporations. 
Suits  against  Bevemte  Officers  of  the  United  States,  and  against 
officers  and  other  persons  acting  under  the  Begistration  Laios^ 
when  removable,  and  when  not,  under  '■'■Force  Act,'''  6. 
7 


98  INDEX 


PAETIES. 

Who  are,  and  who  are  not,  nominal  parties,  17,  n.  22. 
Nominal  parties,  as  affecting  the  rij^ht  of  removal,  17,  n.  22. 
Fraudulent  joinder  of  parties,  17,  n.  22. 

Officers  of  a  corporation,  in  what  sense  nominal  parties  as  defend- 
ants to  a  bill  in  equity,  17,  n.  22. 
In  an  action  for  joint  indi;btedness,  under  the  acts  of  1866  and  1867, 

18,  n.  23. 
Parties  entitled  to  removal  under  Judiciary  Act,  14, 15.  See  also  47. 
Parties  entitled  to  removal  under  act  of  18G6,  20,  21.  See  also, 
47,  57. 
•  Parties  entitled  to  removal  under  act  of  1867,  23,  24.  See  also,  48. 
Joinder  of  resident  and  non-resident  plaintiffs  under  this  act,  24. 
Necessary  party,  though  refused  by  State  court  the  right  to  he- 

come  a  party,  entitled  to  removal,  35. 
Parties  entitled  to  removal  under  act  of  March  3, 1875,  Sec.  XII, 

pp.  47-52. 
Citizenship  of  the  parties  to  the  record  alone  determines  the  juris- 
diction,—not  that  of  parties  beneficially  interested,  48. 
Who  are  parties  to  a  bill  in  equity  filed  by  complainant  in  behalf 
of  himself  and  such  others  as  might  come  in,  etc.,  49,  n.  66. 
PARTNERS. 

Right  of  one  of  several  copartners  to  remove  cause  as  to  himself 
under  act  of  1866,  57. 
PETITION. 

Verification  of,  under  sec.  ]2  of  Judiciary  Act,  18,  n.  24. 

Requisites  of,  under  Rev.  Stats.,  §  63!),  61. 

Under  act  of  1867  (Rev.  Stats.,  §  639,  sub-div.  3),  61. 

Requisites,  function  and  eftect  of  petition,  under  act  of  March  3, 

1875,  63,  64. 
No  necessity  of  verification,  63, 
When  necessary  to  state  that  the  case  is  one  "  arising  under  the 

Constitution,  or  laws  or  treaties  of  the  United  States,"  64, 
Effect  of  petition  and  bond  for  removal  on  jurisdiction  of  State 

court.  Sec.  XV,  pp.  66-70. 
A  petition  founded  on  the  act  of  1867,  though  showing  no  right 
under  that  act,  held  sufficient  to  effect  removal  under  act  of  1866, 
67,  n.  107. 
The  filling  of  petition  and  bond  with  the  clerk  of  the  State  court  in 

vacation,  ipso  facto  ousts  the  jurisdiction  of  State  court,  70. 
Amendment  of,  after  removal  had.  when  allowed,  71, 
The  facts  set  out  in,  subject  of  inquiry  by  the  Federal  comts  exclu 

sively,  75. 
Forms  of  petitions  for  removal.    See  Appendix. 
PLEADING.    See  Practice  and  Pleading. 


INDEX.  9 

PEACTICE  AND  PLEADING.  See  also,  Repleader;  Amendments  ; 
Affidavits;  Remanding  Cause;  Petition;  Bond; 
Time,  and  various  other  appropriate  titles. 

The  uniting  of  legal  and  equitable  relief  in  the  same  suit,  in  the 
code  states;  effect  on  removal,  37. 

Laio  action,  when  removed  to  Federal  court,  must  proceed  as 
such,  38  et  seq. 

Uniform  practice  in  equity  causes  after  removal,  40  et  seq. 

Pi-oper  practice  after  removal,  where  the  suit  in  the  State  court 
unites  legal^and  equitable  grounds  of  relief  or  defense.  Neces- 
sity of  repleader,  41. 

Filing  of  new.declaration  required  under  Judiciary  Act,  42,  n.  53. 

What  is  a  sufficient  averment  of  citizenship  of  corporations,  to 
sustain  Federal  jurisdiction,  49,  n.  67. 

Proper  practice  in  regard  to  affidavit  of  local  influence  or  preju- 
dice, 61  et  seq. 

Mode  of  eflfecting  removal  under  act  of  March  3,  1875,  62-66. 

Quaere  whether  parties  can  remove  a  cause  by  a  stipulation  of  the 
jurisdictional  facts,  66,  n.  106. 

Nature  of  issues  to  be  tried  and  judgment  to  be  rendered,  not 
changed  by  removal,  67,  n.  107. 

Manner  of  procedure  in  Federal  court,  after  removal  is  effected; — 
effect  and  force  of  copies  of  the  pleadings  in  State  court,  70  et  seq. 

New  pleadingSj^not  generally  necessary,  though  sometimes  advis- 
able, 71. 

Amendments  in  respect  to  jurisdictional  facts  sometimes  allowed. 
71. 

Case  of  petitioning  plaintiff,  whose  attornej^  had  misstated  his 
citizenship,  71,  n.  118. 

Proper  practice,  where  State  court  has  improperly  ordered  re- 
moval, 76. 

Remedy  where  State  court  improperly  asserts  jurisdiction,  and  de- 
nies the  removal,  77-79. 

Sufficient  averment  of  citizenship  exemplified,  77. 

Remedy  where  Federal  comt  entertains  jurisdiction  over  cause 
improperly  removed,  79. 
PREJUDICE.    See  Local  Influence. 
PROBATE  OF  WILLS.     See  Wills. 


R. 

RAILWAY  FORECLOSURE. 

Right  of  removal  of  railway  foreclosure  suit  sustained,  notwith- 
standing pendency  of  other  suit  in  State  court,  39. 
REBELLION,  THE. 

Suits  for  acts  done  during,  when  removable  under  act  of  March  3, 
1863,  and  act  of  March  2,  1867,  7,  n.  4. 


100  INDEX. 

KECErV^ERS. 

Of  National  Banking  Associations,  as  such,  hav^  no  power  to  re- 
move cases  to  Federal  court,  52. 
RECORD. 

Meaning-  of  "  record  "  in  sec.  7  of  the  act  of  March  3.  1875.  44. 
REMANDING  CAUSES  TO  STATE  COURT. 

The  subject  expounded,  Sec.  X^'II,  pp.  72-79. 

Uniform  practice  as  to  remanding  cause  before  the  act  of  1875.  72. 

Practice  under  that  act,  73  et  seq. 

Duty  of  Circuit  court,  under  5th  section  of  the  act,  73. 

Motion  to  remand,  must  be  based  on  what;  plea  in  abatement,  75. 

Motion  to  remand,  when  proper;  when  not,  75.  n.  126. 

When  cause  should  be  renianded  at  any  stage  of  the  proceedings, 
75,  n.  126. 

Remedy,  where  Federal  court  improperly  remands,  or  refuses  to 
remand,  cause,  by  writ  of  error  or  appeal  to  Supreme  Court,  76. 
REIVIEDIES.    See  Practice,  and  various  appropriate  titles. 
REMOVAL  ACTS. 

Statutes  giving  the  right  of  removal  in  special  cases,  mentioned,  5-9. 

Acts  of  general  operation,  9-12. 

Construction  of  sees.  641  and  642  of  the  U.  S.  Revised  Statutes, 
5,  n.  3. 

The  "  Force  Act ""  of  March  2, 1833.    Its  provisions ;— its  re-enact- 
ment;— construction; — cases  removable  under  it,  6,  n.  4. 

Section  644  of  the  Revised  Statutes,  in  regard  to  suits  by  alieiis,  6. 

The  act  of  March  3,  1863,  as  to  removability  of  suits  for  acts  done 
during  the  late  rebellion.  7,  n.  4. 

The  act  of  March  2.  1867.  as  to  same,  7,  n.  4. 

The  act  of  July  27,  1868  (Rev.  Stats.,  sec.  640),  as  to  suits  against 
Federal  Corporations.     Text  of  the  statute.  7.  n.  6. 

Provisions,  scope,  construction  of  this  act.  7-9. 

Section  12  of  the  Judiciary  Act;  text  of.  10.  n.  14. 

Act  of  July  27,  1866;  text  of,  10,  n.  14.— Sec.  \L  pp.  19-22. 

Act  of  March  2.  1867;  text  of,  11.  n.  14.— Sec.  YII,  pp.  22-26. 

Revised  Statutes,  sec.  639;  text  of,  10,  11. 

A'alidity  of  the  acts,  11-13. 

Construction  of  the  act  of  1866,  as  to  cases  where  there  can  be  a 
partial  final  determination  of  the  controversy,  20.  n.  26. 

Limited  practical  value  of  tlie  act,  21. 

Act  of  March  3.  1875;  text  of.  12.  note. 

Nature  and  extent  of  right  given  by  this  act.  Sec.  VIII,  pp.  26-33. 

Previous  acts,  as  embodied  in  Rev.  Stats.,  sec.  639.  how  attected. 
by  implication,  by  the  act  of  1875,  28,  29. 
REPLEADER. 

When  necessary  after  removal  of  cause  to  Federal  court.  41,  42. 

'S\lien  not  necessary,  but  ad\isable.  42. 
REPLEVIN. 

Suits  in,  removable  under  act  of  March  3,  1875,  38.  n.  49. 


INDEX.  101 

l^ESIDENCE.    See  Domicile;  Citizenship;  Federal  JuuisincxiON. 
REVENUE  LAWS. 

What  are,  under  act  of  March  2,  1833.  G.  n.  4. 
RIGHT  OF  REMOVAL. 

Material  elements  of    the  right,   under    tlie    principal   statutes, 

13. 
The  right,  as  based  upon  citizenship  of  tlie  parties,  under  sees.  11 

and  12  of  the  Judiciary  Act.  14.  15. 
Necessary  conditions,  under  sec.  12  of  Judiciary  Act.  upon  whidi 

the  right  depends.  17-19. 
Right  to  successive  removals  by  different  defendants,  under  various 

removal  acts,  18,  n.  23. 
Conditions  tliat  must  co-exist  to  autliorize  removal  under  the  act 

of  1866.  19. 
Conditions  under  act  of  1867.  23  et  seq. 
Right,  as  affected  by  citizenship,  under  same  act.  23,  n.  32. 
Nature  and  extent  of  the  right  under  the  act  of  March  3.  1875, 

Sec.  VIII,  pp.  26-33. 
Where  main  controversy  is  between  citizens  of  different  states, 

case  is  undoubtedly  removable,  and  carries  with  it  all  incidents, 

34,  35,  note. 
Right  of  removal   sustained,  where  a  necessary  party  had  been 

wrongfully  refused  the  right  to  become  a  party  by  the  State 

court,  35. 
Right  of  joint  stock  companies  but  partly  endowed  with  attributes 

of  corporations.  50. 
Right  of  corporation  of  another  state  to  remove  cause  commenced 

by  attachment  of  property,  50. 
State  legislation  powerless  to  defeat  this  right,  51. 
Right  of  corporations  chartered  by  foreign  countries,  51. 
Right  of  national  banks  to  sue  in  Circuit  court  under  any  of  tlie 

acts,  except  that  of  July  27,  1868,  51. 
Right  of  removal,  how  affected  by  laches  of  party  applying  there- 
for, in  case  of  a  chancery  cause,  58. 
And  how  affected  by  local  laws  requiring  replication  to  complete 

the   issue,   in    the   al)sence   of    laches    on  the   part   of    appli- 
cant, 58. 
Failure  of  party  entitled  to  removal  to  apply  for  the  transfer  be- 
fore proceeding  to  trial,  defeats  his  right  at  subsequent  term, 

under  act  of  1875.  58,  n.  88. 
Wlien  once  perfected,  tlie  right  of  removal  not  taken  away  by 

subsequent  amendment  in  the  State  court,  or  otherwise.  68. 
Right  not  waived  by   party   entitled  to  removal   contesting  in 

State    court    asserting    jurisdiction    after    proper    application, 

77. 
RIGHT  OF  SUFFRAGE. 

Not  considered  in  determining  state  citizenship  for  jurisdictional 

purposes,  48,  n.  65. 


102  INDEX. 


SETTLEMENT  OF  ESTATES.    See  Estates. 
SLANDEE. 

An  action  of,  when  removable  under  -  Force  Act,"'  6,  n.  4. 
SPLITTING  ACTION. 

Under  the  act  of  1866.    Obvious  purpose ;  probable  reason  for,  21. 
Not  admissible  under  act  of  1867.  23,  n.  32. 
Nor  under  the  act  of  1875,  29. 
STATE  COUKTS. 

From  what  courts  removal  may  be  had,- Sec.  X,  pp.  43  and  44. 
Proceedings  in.  after  removal,  not  stayed  by  vn-it  fi-om  Federal 

court.  45.  note. 
Do  not  embrace  "Justices  of  the  Peace."  within  the  meaning  of 

the  act  of  1867,  .53. 
Nor  Territorial  courts,  mthin  the  meaning  of  the  act  of  1875,  even 
after  admission  of  the  territory  as  a  state,  where  the  suit  was 
brought  in  the  territorial  court,  59. 
Duty  of.  upon  filing  of  proper  petition  and  offer  of  sufficient  surety, 

66  et  seq. 
Whether  order  of  removal  is  necessary,  where  the  petition  presents 

a  case  within  the  removal  acts,  67,  68. 
Exercise  of  jurisdiction  by  State  court,  subsequent  to  filing  of  pe- 
tition and  bond,  erroneous,  67. 
Jurisdiction  not  ousted,  where  petition  and  pleadings  do  not  show 

removable  case,  69. 
Semble,  same  principle  applies,  where  no  security  or  bond  was 

offered,  69. 
Quaere,  whether  State  court  has  power,  under  act  of  1875,  to  judge 

of  the  sufficiency  of  surety  offered,  69. 
An  erroneous  determination,  by  the  State  court,  of  the  sufficiency 
or  insufficiency  of  a  petition,  neither  confers  nor  ousts  Federal 
jurisdiction,  70. 
SUB  JECT-M  ATTEE . 

In  respect  of,  what  suits  may  be  removed  under  act  of  1875.  27. 
The  subject-matter  of  the  controversy  must  be  money,  or  some- 
thing capable  of  pecuniary  estimat4on.  45. 
Requisites  of  petition  in  regard  to,  under  act  of  1875,  63. 

SUITS. 

Natm-e  of,  that  may  be  removed,  under  special  statutes,  6,  7,  9. 
Under  the  .Judiciary  Act,  15  et  seq. 
Under  the  act  of  1866,  20. 
Uuder  the  act  of  1867,  23  et  seq. 
Under  the  act  of  1875.  26  et  seq.,  33. 

Suits  involving  construction  of  the  bankrupt  act,  removable  under 
act  of  1875,  33. 


INDEX.  103 

SUITS— Continued. 

Suit  involving  title  to  land,  when  only  removable.  33. 

Suit  in  relation  to   mining  claims,  when  removable,  and  when 
not,  33. 

Nature  of,  that  may  be  removed  under  the  several  removal  acts; — 
practice  as  to  repleader,  Sec.  IX,  pp.  34-42. 

Suit  to  determine  value  of  land  appropriated  under  right  of  emi- 
nent domain,  36,  n.  47;  38,  n.  49. 

Suits  by  attachment,  37,  n.  49. 

Ejectment  actions.  37,  n.  49.     See  also,  7,  n.  4. 

Original  suit  which  may  be  removed,  and  supplement  or  sequence 
of  former  suit,  distinguished,  36,  n.  47. 

A  bill  in  equity  to  reform  an  insurance  policy,  36,  n.  47 ;  38.  n.  49. 

Suit  against  garnishee  as  co-defendant,  not  removable  as  to  him- 
self alone.  36.  n.  47. 

Suit  in  replevin,  removable.  38,  n.  49. 

Special  statutory  proceeding  to  confirm  a  tax  title,  38,  n.  49. 

Suits  to  annul  a  will,  in  eftect  suits  in  equity,  and  removable  under 
act  of  March  2,  1867,  38,  n.  49. 

Suits  for  the  establishment  of  claims  against  the  estates  of  deceased 
persons,  probate  of  \vills,  etc.,  38,  39. 

Suits  in  State  court,  to  restrain  execution  of  a  judgment  by  a  seiz- 
xive  of  plaintiff's  lands,  removable,  39. 

Railway  foreclosure  suit  removable  under  act  of  1875 ;  right  sus- 
tained even  when,  39. 

Removal  of  torts ; — conspiracy,  40. 

Definition  of  "  suit,"  •'  action,"  '•  case,"  '^  cases  in  law  and  equitj'," 
40. 

Suits  "  arising  under  a  law  of  the  United  States,"  40. 

" J.n?/ suit   *    *    *   7iO!';pe«(?in(if  "  (act  of  1875.  sec.  2)  construed; — 
what  cases  embraced  by  this  term,  60. 
SURETY.— BOXD. 

Requirements  of  sec.  639  of  the  Rev.  Stats,  as  to,  65. 

Same,  under  sec.  3  of  the  act  of  1875.  65. 

Construction  of  this  section,  66. 

What  ii'regularities  \vill  be  deemed  important,  and  what  unim- 
portant, 66. 

Sufficiency  of,  determined  by  what  court,  69. 

T. 

TERRIT0RL4L  COURTS. 

Are  not  ■•  State  courts."  ^vithin  the  meaning  of  the  act  of  1875, 
even  after  admission  of  the  territory  as  a  state.  59. 
TEVIE  OF  APPLICATIOX. 

Wlien  removal  must  be  applied  for,  under  act  of  1875,  27. 

When  application  for  removal  must  be  made  under  sec.  12  of  the 
Judiciary  Act,  52. 


104  INDEX 

TIME  OF  APPLICATION— Conuntted. 

The  right  of  removal,  under  tliis  provision,  deemed  waived, 
when.  52. 

Right  of  diftercnt  defendants  to  remove  at  different  times,  52, 
n.  77. 

Application  too  late  after  reference  and  continuance,  52,  n.  77. 

State  court  may  not  restore  right  by  allowing  an  appearance  min& 
pro  tunc,  52,  n.  77. 

Enlarged  time  under  acts  of  1866  and  1867,  53. 

The  words  •'  trial  "  and  ••  hearing"'  refer  respectively  to  what,  53. 

••  Final  Trial  "  defined,  within  tlie  meaning  of  the  act  of  1867,. 
.53,  54. 

Application,  under  acts  of  1866  and  1867,  when  too  late,  54.  55. 

Final  judgment; — construed  in  reference  to  time  of  application 
under  same  acts,  53-56,  passim. 

Application  not  too  late,  under  acts  of  1866  and  1867,  where  the 
trial  court  has  set  aside  verdict  and  granted  new  trial,  54. 

Xor  where  the  State  appellate  court  lias  wholly  reversed  judgment 
and  remanded  case,  54. 

Conflicting  doctrines  on  tliis  point  announced  by  the  State  and 
Federal  courts,  witli  emuneration  of  the  most  impoi'tant  cases  in 
support  of  both  doctrines,  54  and  55,  n.  81. 

A  new  and  interesting  point,  now  awaiting  decision  in  U.  S.  Su- 
preme Court,  55, 

Application,  when  too  late  imder  act  of  1875; — the  question,  as 
affected  by  state  legislation  (Ohio  and  Minnesota),  as  to  effect 
of  first  judgment  and  of  proceeding  for  review,  56,  n.  83. 

The  provisions  of  the  act  of  1875,  in  regard  to  the  time  for  removal, 
57  et  seq. 

''■  Before  or  at  *  *  *  the  term  at  which  the  cause  could  be /rs« 
tried,'''  construed,  58. 

Chancery  cause  can  not  be  tried  until  issues  are  made  up;  appli- 
cation for  removal  of  such  cause,  when  in  time.  58. 

Whether  laches  in  making  up  issues  will  defeat  right  of  removal,  58. 

The  word  "  trial,"  as  used  in  sec.  3  of  the  act  of  1875,  in  ref- 
erence to  the  time' when  removal  must  be  applied  for,  construed, 
.59. 

The  objection  in  the  Federal  court,  ••  that  the  application  for  re- 
moval was  not  made  in  time  in  the  State  court,"'  deemed  ivaived 
when.  .59,  60. 

Time  allowed  defendant  under  Revised  Statutes,  sec.  639.  and  under 
sec.  7  of  act  of  1875.  for  filing  copies  of  the  record  and  entering 
his  appearance,  74.     See  also,  n.  125. 
TORTS. 

Action  of  tort,  wlien  removable  under  acts  of  1866  and  1867,  40. 
TRIAL. 

'•Trial"*  and  "liearing,"  in  the  acts  of  1866  and  1867.  distin- 
guished; to  what  they  respectively  refer,  53. 


INDEX.  105 

TRIAL. —  Contimied. 

Final  trial,  within  the  meaning  of  the  act  of  1867,  construed,  53, 
n.  79 ;  54. 

Everj^  trial  final,  until  in  some  form  vacated,  56. 

Doctrine  applied  to  cause,  where  verdict  has  been  rendered,  and  a 
motion  to  set  the  verdict  aside  is  pending,  56. 

The  word  "trial"  construed,  as  used  in  sec.  3  of  act  of  1875,  in 
reference  to  time  when  removal  must  be  applied  for,  59. 

Term  of  court  at  which  a  cause  might  he  finally  heavd,  governed 
by  the  local  law  and  practice,  59. 

•* ^71?/ suit    *     *     *     now  pending ''\(sec.  2  of  act  of  1875)    con- 
strued ; — what  cases  fall  into  the  category  intended  by  this  lan- 
guage, 60. 
TRUSTEES. 

Citizenship  of,  48  and  49,  n.  (]G. 

V. 

VALUE  OR  A310UNT  IN  DISPUTE. 

Under  act  of  March  3,  1875,  27,  45-47. 

It  must  exceed  a  certain  amount,  46. 

How  determined,  46. 

Requisites  of  petition,  in  regard  to  amount  in  dispute,  63. 
VERIFICATION.     See  Petition. 

W. 

WAIVER.  1 

What  constitutes  a  waiver  of  the  right  of  removal,  under  sec.  12  of 

the  judiciary  Act,  52. 
Of  the  objection  to  the  removal,  "that  the  application  was  not 

made  in  time  in  the  State  court,"  by  acquiescence,  59. 
Objection  not  made  in  proper  time,  deemed  waiver  likewise,  59. 
And  such  waiver  conclusive,  where  the  jurisdiction  of  the  Circuit, 

court  is  submitted  to,  60. 
Case  where  the  objection  was  allowed  pt  next  term,  60. 
When  waiver  of  obje  ctioiis,  on  account  of  irregularities  in  bond 

will  be  presumed,  66. 
Waiver  of  right  to  have  cause  remanded,  73,  n.  121. 
Waiver  of  right  of  removal  by  subsequent  conduct  in  State  court,  74 
Appearance  of  party  entitled  to  removal,  after  proper  application. 

in  State  court  refusing  the  transfer,  not  a  waiver  of  right,  77. 
Practice  in  such  case ;— remedy,  first,  by  appeal  to  the  highest 

court  of  state,  and  then  by  writ  of  error  from  U.  S.  Supreme 

Court,  77. 
WILLS. 

Suits  to  annul,  in  effect  suits  in  eiiuily,  and  removable  under  act 

of  1867,  38. 
Removability  of  suits  concerning  probate  of  wills,  etc.,  38.  39. 


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